[Senate Hearing 112-951]
[From the U.S. Government Publishing Office]
S. Hrg. 112-951
STATUS OF THE DEEPWATER HORIZON
NATURAL RESOURCE DAMAGE ASSESSMENT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WATER AND WILDLIFE
of the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JUNE 28, 2011
__________
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana JAMES M. INHOFE, Oklahoma
THOMAS R. CARPER, Delaware DAVID VITTER, Louisiana
FRANK R. LAUTENBERG, New Jersey JOHN BARRASSO, Wyoming
BENJAMIN L. CARDIN, Maryland JEFF SESSIONS, Alabama
BERNARD SANDERS, Vermont MIKE CRAPO, Idaho
SHELDON WHITEHOUSE, Rhode Island LAMAR ALEXANDER, Tennessee
TOM UDALL, New Mexico MIKE JOHANNS, Nebraska
JEFF MERKLEY, Oregon JOHN BOOZMAN, Arkansas
KIRSTEN GILLIBRAND, New York
Bettina Poirier, Majority Staff Director and Chief Counsel
Ruth Van Mark, Minority Staff Director
------
Subcommittee on Water and Wildlife
BENJAMIN L. CARDIN, Maryland, Chairman
MAX BAUCUS, Montana JEFF SESSIONS, Alabama, Ranking
FRANK R. LAUTENBERG, New Jersey Member
SHELDON WHITEHOUSE, Rhode Island JOHN BARRASSO, Wyoming
TOM UDALL, New Mexico DAVID VITTER, Louisiana
KIRSTEN GILLIBRAND, New York MIKE CRAPO, Idaho
BARBARA BOXER, California, (ex LAMAR ALEXANDER, Tennessee
officio) JAMES M. INHOFE, Oklahoma, (ex
officio)
C O N T E N T S
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Page
JUNE 28, 2011
OPENING STATEMENTS
Cardin, Hon. Benjamin, U.S. Senator from the State of Maryland... 1
Sessions, Hon. Jeff, U.S. Senator from the State of Alabama...... 4
Vitter, Hon. David, U.S. Senator from the State of Louisiana..... 6
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode
Island......................................................... 44
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma,
prepared statement............................................. 136
WITNESSES
Dohner, Cynthia, Regional Director, Southeast Region, U.S. Fish
and Wildlife Service........................................... 8
Prepared statement........................................... 11
Responses to additional questions from:
Senator Cardin........................................... 17
Senator Vitter........................................... 21
Penn, Tony, Deputy Chief, Assessment and Restoration Division,
Office of Response and Restoration, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce........ 24
Prepared statement........................................... 26
Responses to additional questions from:
Senator Cardin........................................... 34
Senator Vitter........................................... 39
Boesch, Donald, Professor of Marine Science and President of the
University of Maryland Center for Environmental Science, Member
of the National Commission on the BP Deepwater Horizon Oil
Spill and Offshore Drilling.................................... 49
Prepared statement........................................... 52
Leinen, Margaret, Vice-Chair, Gulf of Mexico Research Initiative
Review Board; Executive Director, Harbor Branch Oceanographic
Institute; Associate Provost for Marine and Environmental
Initiatives, Florida Atlantic University....................... 58
Prepared statement........................................... 60
Rifkin, Erik, Interim Executive Director, National Aquarium
Conservation Center, National Aquarium......................... 63
Prepared statement........................................... 65
Graves, Garret, Chair, Coastal Protection and Restoration
Authority...................................................... 98
Prepared statement........................................... 101
Responses to additional questions from:
Senator Cardin........................................... 109
Senator Vitter........................................... 112
Shattuck, R. Cooper, Chairman, Executive Committee, NRDA Trustee
Council, Legal Adviser to Governor Bentley..................... 119
Prepared statement........................................... 122
ADDITIONAL MATERIAL
Statement of Northwest Florida Tourist Development Council
Coalition...................................................... 137
STATUS OF THE DEEPWATER HORIZON NATURAL RESOURCE DAMAGE ASSESSMENT
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TUESDAY, JUNE 28, 2011
U.S. SENATE
Committee on Environment and Public Works,
Subcommittee on Water and Wildlife
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m. in
room 406, Dirksen Senate Office Building, Hon. Benjamin Cardin
(chairman of the subcommittee) presiding.
Present: Senators Cardin, Sessions, Vitter and Whitehouse.
OPENING STATEMENT OF HON. BENJAMIN CARDIN,
U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Cardin. Good morning, everyone.
The Subcommittee on Water and Wildlife of the Environment
and Public Works Committee is holding this hearing in order to
followup on our responsibilities on the oversight of the damage
caused by the explosion of Deepwater Horizon.
I want to thank Senator Sessions for his cooperation in
arranging for this hearing. I think it is an important part of
our continuing oversight responsibility.
On April 20th of last year, the offshore drilling rig
Deepwater Horizon exploded, triggering the largest accidental
marine oil spill in history. Oil gushed from the well for 87
days, releasing 4.9 million barrels of oil. That is almost 20
times the Exxon Valdez oil spill.
The catastrophe claimed 11 lives and left thousands of
others in turmoil across Louisiana, Texas, Mississippi, Alabama
and Florida. The spill has been referred to as the worst
environmental disaster in the United States. With oil covering
over 3,000 miles of ocean, impacts on water and wildlife are
substantial. Oil contamination killed thousands of birds, in
addition to many mammals and sea turtles. Those who depend on
the region's natural resources for livelihoods were also
impacted.
As Chairman of this Subcommittee I visited the Gulf and saw
first-hand the devastation and devastating environmental and
economic impacts of the oil disaster. But what I witnessed was
the beginning. Long-term impacts on the Gulf waters continue to
emerge.
Under Federal law, BP and its partners are liable for the
catastrophic damages caused by the Deepwater Horizon. While the
statutory limit for the spill is only $75 million, BP has
agreed to pay in full and has already committed $1 billion in
advance for the restoration projects.
The natural resources damage assessment, NRDA, is the legal
process by which the Federal and State agencies identify
impacts on natural resources, how to best restore them, and the
costs for achieving restoration. Since the NRDA process
determines the scale and means of restoration efforts, it is
critical that it is done right.
The Water and Wildlife Subcommittee has responsibility for
overseeing the NRDA process to ensure that it is accurate,
thorough, transparent and fully accounts for the short-and
long-term effects of the spill. My colleagues and I are
committed to doing everything we can to right the wrong that
has happened in the Gulf.
Last year, we initiated oversight hearing by conducting an
initial hearing assessing the NRDA process for the Deepwater
Horizon spill. We listened to experts from the field who
provided invaluable information about the NRDA efforts. Experts
shared lessons from the previous spill cleanups, suggesting how
to maximize process effectiveness and concerns over obstacles
to a successful assessment.
But evaluating impact of oil and hazardous substances on
the Gulf's complex ecosystem is no simple task. The process can
take years. We come together 1 year later with access to more
comprehensive information and a better idea of the true impacts
of this devastating accident from the severe and potentially
chronic damage to marine life and local fishing economies, to
the loss of tourism dollars due to damaged coastal environment.
Today's hearing is intended to ensure that the Deepwater
Horizon NRDA process is being conducted as accurately and
thoroughly as possible, and will result in a settlement that
fully restores the damage that the Gulf region has suffered
from this devastating spill.
Specifically, we will be examining where the assessment
process currently stands and hear about some of the damage
findings to date, learning how damage assessment is taking into
account long-term damage effects that may only become evident
after a financial settlement is reached and understanding
whether the assessment process is effectively engaging the
public and providing transparent information to the affected
communities.
In the weeks following the spill, the President instituted
a commission of national experts to study the spill's response
and to recommend concrete improvements to various government
responses, including the damage assessment process. That
commission noted that the Deepwater Horizon spill as a uniquely
destructive spill of national significance and requires a
uniquely thorough government response.
The commission has made numerous recommendations to assure
the effective and appropriate coordination of the hosts of
Federal agencies, State governments and others impacted by a
spill of this magnitude. Specifically, the commission
recommended the appointment of independent scientific auditors
to oversee the damage assessment process. They recommended a
course of transparency and public engagement in the data-
sharing and restoration planning and they have recommended that
human public health impacts be explicitly included in this
response.
So today, we will hear from a series of witnesses, starting
with our government panel, and then from people from the
private sector to see how well we are complying with the
warnings that have been given to us and whether we are using
best science; whether we have put together the transparency
necessary to make sure that we have public confidence that we
are doing what is right; making sure that we not only take care
of the known damages now, but that we also understand there may
be further damage that comes to our attention, that the
restoration plans take that into consideration.
I want to thank all the witnesses for participating today
and I look forward to your testimony.
And with that, let me turn to Senator Sessions.
[The prepared statement of Senator Cardin follows:]
Statement of Hon. Benjamin L. Cardin, U.S. Senator
from the State of Maryland
On April 20th of last year, the offshore drilling rig
Deepwater Horizon exploded, triggering the largest accidental
marine oil spill in history. Oil gushed from the well for 87
days, releasing 4.9 million barrels of oil. That is almost 20
times the Exxon Valdez oil spill.
The catastrophe claimed 11 lives and left thousands of
others in turmoil across Louisiana, Texas, Mississippi, Alabama
and Florida.
The spill has been referred to as the ``worst environmental
disaster the US has faced.'' With oil covering over 3,000 miles
of oceans, impacts on water and wildlife are substantial.
Oil contamination killed thousands of birds in addition to
many mammals and sea turtles. Those who depend on the region's
natural resources for their livelihoods were also impacted.
As Chairman of this Subcommittee, I visited the Gulf and
saw first-hand the devastating environmental and economic
impacts of this oil disaster. But what I witnessed was only the
beginning. Long-term impacts on the Gulf waters continue to
emerge.
Under Federal Law, BP and its partners are liable for the
catastrophic damages caused by the Deepwater Horizon spill.
While the statutory liability cap for the spill is a mere $75
million, BP has agreed to pay in full, and has already
committed $1 billion in advance for restoration projects.
The Natural Resource Damage Assessment is the legal process
by which Federal and State agencies identify impacts on natural
resources, how to best restore them, and the costs for
achieving restoration.
Since the NRDA process determines the scale and means of
restoration efforts, it is critical that it is done right. The
Water and Wildlife Subcommittee has responsibility for
overseeing the NRDA process to ensure that it is accurate,
thorough, transparent, and fully accounts for short-and long-
term effects of the spill.
My colleagues and I are committed to doing everything we
can to right the wrongs that have happened to the Gulf. Last
year, we initiated oversight efforts by conducting an initial
hearing assessing the NRDA process for the Deepwater Horizon
spill. We listened to experts from the field, who provided
invaluable information about the NRDA effort. Experts shared
lessons from previous spill clean-ups, suggestions for how to
maximize process effectiveness, and concerns over obstacles to
a successful assessment.
But evaluating impacts of oil and hazardous substance on
the Gulf's complex ecosystems is no simple task. The process
can take years. We come together 1 year later with access to
more comprehensive information and a better idea of the true
impacts of this devastating accident, from the severe and
potentially chronic damage to marine life and local fishing
economies to the loss of tourism dollars due to damaged coastal
environments.
Today's hearing is intended to ensure that the Deepwater
Horizon NRDA process is being conducted as accurately and
thoroughly as possible, and that it results in a settlement
that fully restores the damage that the Gulf region has
suffered from this devastating spill. Specifically, we will be:
examining where the assessment process currently stands,
and hearing about some of the damage findings to date;
learning how damage assessment is taking into account
long-term damage effects that may only become evident after a
financial settlement is reached; and
understanding whether the assessment process is
effectively engaging the public and providing transparent
information to affected communities.
In the weeks following the spill, the President instituted
a commission of national experts to study the spill response
and to recommend concrete improvements to various government
responses, including the damage assessment process. That
Commission noted that the Deepwater Horizon spill, as a
uniquely destructive ``spill of national significance,''
requires a uniquely thorough government response.
The Commission made a number of recommendations to ensure
the effective and appropriate coordination of the host of
Federal agencies, State governments, and others impacted by a
spill of this magnitude. Specifically, the Commission
recommended the appointment of an independent scientific
auditor to oversee the damage assessment process. They
recommended a course of transparency and public engagement in
the data-sharing and restoration planning. And they recommended
that human public health impacts be explicitly included in the
response efforts.
Today, we will hear from a key architect of those
recommendations. He will give us his understanding of whether
and to what extent those recommendations have been implemented
in the Deepwater Horizon damage assessment, and how what affect
that might have on the settlement and the ultimate recovery of
the Gulf region.
We will use the Commission's recommendations to help us
evaluate the NRDA process.
How are the trustees handling the damage assessment of
this event of ``national significance''?
Do we need an independent science board in the future for
spills of national significance?
Is the current process sufficiently transparent;
Are public health concerns being incorporated; and
Is the public being engaged?
We will also hear from NRDA trustees, from both the Federal
Government and the states. They will present information about
the status of the assessment to date, including reporting on
what initial field data are showing about damage to various
ecosystems and habitats. They will be able to tell us how the
NRDA trustees are accounting for long-term damages, which may
not yet be evident in research studies to date, but which could
show up in the months and even years to come. They will give us
a sense of any restoration planning that has taken place to
date, and whether the public is being effectively engaged in
the process. They will also be able to give us a sense of how
the BP's participation in the damage assessment is impacting
the effectiveness of the research and planning.
We cannot undo the damage that has been done. But through
the natural resource damage assessment and subsequent
restoration efforts, we can employ best practices to minimize
impacts and ensure an effective, thorough restoration.
We will do everything in our power to ensure that this
process is of the highest quality and that it ultimately
results in a settlement that fully repairs all of the damages
the Gulf region has suffered due to this tragic spill. I want
to thank our witnesses for joining us today to assist us in our
efforts to clean up the Gulf, and to provide hope for people
living throughout the Gulf region that their environment and
way of life will soon be restored.
OPENING STATEMENT OF HON. JEFF SESSIONS,
U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. Thank you, Senator Cardin. I appreciate
your leadership and efforts to stay on top of the NRDA process.
I do believe it is important and thank you for doing that.
I know Senator Vitter, I know how many hours he spent
working on this bill, as I did, and how it impacted our States.
And we appreciate you bringing this forward.
During the last year Deepwater Horizon incident, more than
200 million gallons of oil spilled into the Gulf, 20-times the
volume, as you said, Mr. Chairman, of that released during
Exxon Valdez. Much of that was dispersed through chemical
dispersants. The Gulf waters are warmer and microbes helped
remove more than it did in the cold waters of Alaska. But we
don't know yet the full impact that all of that will have on
our system environmentally.
For a season, the incident spoiled miles of beautiful
beaches along the Gulf Coast, dissuaded tourists from
frequenting the area, and caused great economic loss to the
region's seafood industry. Maybe I would show, Mr. Chairman,
two photographs that give a feel for our area on the Alabama
Gulf Coast. We were really hammered in the tourist industry.
Can you hold that up?
This is the condition of the public beaches where people
live and go for recreation. They have been cleaned very well.
BP people are still there. If some oil comes up, they will
clean it up promptly.
Now, this chart is at the wildlife refuge area on the
beach. And under the Fish and Wildlife Service, they are uneasy
about using equipment to clean it up for environmental reasons.
It may have to be cleaned by hand. But this is an area that is
not the public beaches, but it is an area of environmental
significance. So it shows sort of what it would be like had
they not been cleaned up. And I do believe that issue has got
to be confronted. We need to have an effective relationship
with the Fish and Wildlife people to determine how to clean
that up.
So the tourism industry is rebounding, but we need to look
at the long-range natural resource impact of the spill and the
losses associated with that impact. The natural resources
damages assessment NRDA process will play a critical part in
restoring the Gulf Coast. Federal, State, tribal and local
governmental stakeholders, the NRDA Trustees, are engaged in
the assessment of damage to the natural resources, including
the beaches, fishery, the wildlife, water and other resources.
And it takes a look at the losses that have occurred.
In Alabama alone, commercial fishing, seafood processing
and related industries accounted for some $1 billion in annual
revenues before the spill. As we know, the spill caused that
industry to essentially shut down for months. Unfortunately for
shrimpers, it was in the most critical months of the season,
May through October; 40 percent of Alabama's waters were closed
to fishing. Shrimp landings decreased by 50 percent to 60
percent in 2010 compared to 2009. One recent study found that
oyster beds would in the Gulf Coast would take up to 10 years
to recover. That is a significant thing and we would like to
know more about that and the meaning of that report.
During the oil spill, around 28,000 sea turtle eggs were
moved from the turtle nests along the Gulf shores and beaches.
It may be decades before we know the impact of that. We have
tried to preserve the turtle population and the people on the
beach have been doing that for years voluntarily. They watch
them and protect them in any way possible.
So we have had a number of problems. The $1 billion that
has been put forth by BP at this point is a good step, as you
noted. But the final tally of natural resource damages relating
to the spill is likely to require billions more.
So I am glad that we have the representatives of the NRDA
Trustee Council here with us, including Alabamian Cooper
Shattuck, and I will more formally introduce him on the second
panel.
Thank you, Mr. Chairman. I look forward to hearing the
testimony.
Senator Cardin. Thank you, Senator Sessions.
I had the chance to visit the coast with Senator Vitter,
and I appreciated his leadership on our Committee in keeping us
informed as to the conditions in the Gulf.
Senator Vitter.
OPENING STATEMENT OF HON. DAVID VITTER,
U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Vitter. Thank you, Mr. Chairman, and thank you for
that visit and all of your work. And thanks to Senator
Sessions. We obviously partnered a lot during this tragedy and
the followup, as well as with our other Gulf colleagues. Thank
you for this hearing. It is certainly very important.
I would also like to personally thank Garret Graves. He is
on the second panel. He is here today as a trustee to
Louisiana's restoration efforts, a former member of my staff
and a long-time staffer with the Louisiana delegation, now
serving as the Chair of the Coastal Protection and Restoration
Authority of Louisiana.
As we are all aware, the Deepwater Horizon disaster was a
grave disaster, starting with the loss of 11 lives, 11 of our
fellow Americans, hard-working contributing members of society
who left this world far too soon.
The incident also resulted in the largest oil spill in
history, period; an incident that pummeled the Gulf Coast and
left significant environmental and economic damage, which is an
ongoing challenge.
About a year ago, I was able to work with several of my
colleagues to secure funding for a National Academies of
Science study to review the best methodology for ascertaining
the consequences of the BP spill and to make recommendations to
the Trustees for assessing the entire universe of environmental
impacts. So I very much look forward to hearing all of the
panelists' thoughts about this NAS work.
To say that the work of the NRDA Trustees is important
would be an enormous understatement, for Louisiana coastal
restoration has been an ongoing challenge. It will be one
through my lifetime and beyond my lifetime. Over the last 80
years, 1,900 square miles of wetlands have been lost through
coastal erosion. The BP spill exacerbated the habitat
challenges for our fisheries and wildlife, but it also provides
a significant opportunity to restore much of the Gulf and make
critical investment counteracting this very grave trend. And
the NRDA Trustees are at the forefront of that opportunity.
Finally, Mr. Chairman, I just want to underscore four key
points. No. 1, one of the Federal responses to this tragedy by
the Administration was to issue a moratorium on domestic energy
production in the Gulf that continues to be a real permitting
and economic challenge for the Gulf more than a year later.
Production there will fall well below what it should have been
over the next year. Unemployment as a direct result of this and
the Interior Department's mismanagement of permitting is way
too high.
It would be a far smarter economic decision, in my mind, to
rectify these issues to get the Gulf and America back to work,
rather than, for instance, selling off part of the Strategic
Petroleum Reserve.
No. 2, the Interior Department's idle iron guidance may
well be a step backward for Gulf fisheries habitat, and I think
we need to look at that carefully. States like Louisiana and
Texas have been very supportive of strong rigs-to-reefs
programs, and I believe even California has recently taken
steps to protect critical marine habitat built through
artificial reefs around this infrastructure. When we are trying
to recover the fisheries in the Gulf, I really don't think it
will be helpful to mandate removing, in many cases, premier
fish habitats that have become home to a plethora of marine
wildlife.
No. 3, we absolutely need to figure out a way to speed up
this NRDA process. The idea that investment in restoration
could take upwards of a decade is really unacceptable. We need
to figure out to get BP to more quickly sign off on assessment
review and funding. The initial $1 billion that Senator
Sessions mentioned was a good step, but the continued leverage
BP has on the process needs further scrutiny. And I would
suggest we look at my bill that I have joined with others on,
S. 662, also cosponsored by my Louisiana colleague Mary
Landrieu, which would require a further significant down
payment on NRDA liability.
And fourth and finally, I continue to work closely with all
of my Gulf colleagues, certainly including Senator Sessions, to
direct the fines under the Clean Water Act for this disaster to
the impacted area in the Gulf. It remains appropriate that at
least 80 percent of those fines levied on BP go toward
restoring the Gulf and Gulf State economies. And I look forward
to continuing to work with Chairman Boxer and this Committee in
particular to move that bill. And I believe a markup is being
scheduled for the week we return from the July 4th recess.
Thank you very much, Mr. Chairman.
[The prepared statement of Senator Vitter follows:]
Statement of Hon. David Vitter, U.S. Senator
from the State of Louisiana
Thank you Chairman Boxer and Ranking Member Inhofe for
holding this hearing today on assessing the status of early
restoration and the Natural Resources Damages Assessment (NRDA)
process.
I would personally like to thank Garret Graves, who is here
today as a trustee to Louisiana's restoration efforts, a former
member of my staff, and a long time staffer in the Louisiana
delegation and now serving as the chair of the Coastal
Protection and Restoration Authority of Louisiana.
As we are all aware, the disaster at Deepwater Horizon was
a grave tragedy that took the lives of 11 of our fellow
Americans. These were hard working contributing members of our
society who left this world far too soon.
The incident also resulted in the largest oil spill in
history. An incident that pummeled the Gulf Coast and left
significant environmental and economic damages that remain an
ongoing challenge.
Approximately a year ago I was able to work with several of
my colleagues to secure funding for a National Academies of
Science (NAS) study to review the best methodologies for
ascertaining the consequences of the BP spill and to make
recommendations to the Trustees for assessing the entire
universe of environmental impacts. I look forward to hearing
the panel's thoughts on the NAS work.
To say that the work of the NRDA Trustees is important
would be a huge understatement. Coastal restoration in
Louisiana will be an ongoing challenge to extend well beyond my
lifetime. Over the last 80 years 1900 square miles of wetlands
have eroded or been lost. The BP spill has exacerbated the
habitat challenges for our fisheries and wildlife, but also
provides a significant opportunity to restore much of the Gulf
and make critical investment in the science necessary to
protect and strengthen the resiliency of the Gulf Coast. The
NRDA Trustees are at the forefront of that opportunity.
Finally, there are four key points I would like to
highlight:
1. One of the Federal responses to this tragedy was to
issue a moratorium on domestic energy production that continues
to be a permitting and economic challenge for the Gulf region
even now, more than a year later. Production in the Gulf will
fall well below what it should over the next year, and
unemployment as a direct result from Interior Department's
mismanagement of the permitting process remains too high. It
would be a far smarter economic decision to rectify the
permitting process at Interior and get our fellow Americans
back to work in the Gulf rather than selling oil from the
Strategic Petroleum Reserve.
2. The Interior Department's ``Idle Iron'' guidance may
very well be a step backward for Gulf fisheries habitat. States
like Louisiana and Texas have been very supportive of strong
``Rigs to Reefs' programs, and I believe even California has
recently taken steps to protect the critical marine habitat and
artificial reefs established by this infrastructure. In fact,
when we are trying to recover the fishery in the Gulf, I don't
see how it can be helpful to remove premier fish habitat that
has become home to a plethora of marine wildlife and even
threatened and endangered species.
3. We need to figure out a way to speed the process. The
idea that investment in restoration could take upwards of a
decade is unacceptable. We need to figure out how to get BP to
more quickly sign off on the assessment, review, and funding
activities. The initial $1 billion was a good first step, but
the continued leverage BP has in the process needs further
scrutiny. It may be prudent in the near future to look at
moving S. 662, legislation written by me and cosponsored by my
colleague Mary Landrieu, which would require a significant down
payment on NRDA liabilities.
4. Finally, I continue to work closely with my Gulf
colleagues to direct the fines under the Clean Water Act to the
Gulf States that were impacted. It remains appropriate that at
least 80 percent of the fines leveled on BP go toward restoring
the Gulf and Gulf State economies. I will continue to work with
the Chair and Ranking member of this committee and am committed
to my Gulf colleagues who have been working diligently together
on this issue for the last several months.
Thank you Madame Chair and ranking member Inhofe, and I
thank our witnesses for their testimony today.
Senator Cardin. Thank you, Senator Vitter.
We will now turn to our first panel.
The agency Trustees play a critical role in this whole
process, the two Federal agencies plus the States that are
affected, the States of Louisiana, Mississippi, Alabama,
Florida and Texas. But the two Federal agencies play a role in
assessing and developing an action plan to remedy the damage
that is done, hopefully in conjunction with BP, but ultimately
decided, if necessary, by the courts.
So we welcome our two government agency representatives
that are here. We know that you have been extremely busy on
this issue since the incident occurred. First, we have Cynthia
Dohner, the Regional Director of the Southeast Region, U.S.
Fish and Wildlife, one of the Federal Trustees; and Mr. Tony
Penn, the Deputy Chief of the Assessment and Restoration
Division, Office of Response and Restoration, NOAA.
Welcome. Your full statements will be made part of the
record and you may proceed as you wish.
Ms. Dohner.
STATEMENT OF CYNTHIA DOHNER, REGIONAL DIRECTOR, SOUTHEAST
REGION, U.S. FISH AND WILDLIFE SERVICE
Ms. Dohner. Good morning and thank you, Chairman Cardin and
Members of the Subcommittee.
I am Cynthia Dohner, the Regional Director of the U.S. Fish
and Wildlife Service's Southeast Region. I also serve as the
Department of Interior's authorized official for the natural
resource damage assessment and restoration process in the
Deepwater Horizon oil spill. I appreciate the opportunity to
appear before the Subcommittee today to testify about Interior
Department's ongoing work on the assessment and ultimate
restoration of natural resource damaged in the wake of the
Deepwater Horizon oil spill over a year ago.
The magnitude of the Deepwater Horizon oil spill is
unprecedented in the United States and could result in
significant injury to the Gulf of Mexico ecosystem and its vast
and diverse natural resources. The natural resource damage
assessment and restoration effort as a result of this historic
oil spill continues to be a high priority effort for the
department and the service.
While the response to this historic oil spill continues,
the Federal agencies and States that make up the NRDA Trustee
Council are working to complete pre-assessment phase activities
and have initiated a formal assessment of damages; launched
work on a programmatic environmental impact statement for
potential restoration options; undertaken emergency restoration
projects; and reached an unprecedented agreement with BP that
makes the $1 billion available for early restoration projects
to be implemented before ultimate resolution of the claims.
The NRDA process focuses on identifying injured natural
resources, determining the extent of the injury, recovering
damages from those responsible, and planning and carrying out
natural resource restoration activities that achieve pre-spill
conditions.
NRDA also seeks to ensure that responsible parties
compensate the public for the lost use and enjoyment of those
resources. The department is working with fellow Trustees and
independent and responsible party scientists to obtain the best
available scientific data to support our assessment of
injuries. Much of the NRDA work currently underway is part of
the injury assessment and restoration planning phase.
Although the concept of assessing injuries may sound
relatively straightforward, understanding complex ecosystems,
the services these ecosystems provide, and the injuries caused
by oil and hazardous substance takes time, often years.
The NRDA process seeks to ensure an objective,
scientifically rigorous and cost-effective assessment of
injuries, and that harm to the public's resources is fully
addressed. Simply put, the objective under the Oil Pollution
Act is to restore injured natural resources to their pre-spill
conditions.
The Trustees issued an notice of intent to conduct
restoration planning and initiated the formal assessment
process in October, 2010. However, numerous pre-assessment
studies involving analysis of baseline and preliminary exposure
data are still ongoing. Today, formal assessment studies are
well underway and the department expects that any remaining
pre-assessment activities will be completed before the end of
the year.
Assessment of the injuries resulting from this spill is
moving forward through both independent studies by the Trustees
and cooperative studies with BP Currently, more than 80 studies
are planned. The department is taking the lead on more than 20
of these studies involving bird species, loggerhead and Kemp's
Ridley sea turtles, beach mice and aerial imaging.
So far, 24 private nongovernmental and academic entities
from several universities are engaged in these studies and the
assessment work. More than two dozen technical working groups
comprised of the Trustee agencies are working to determine and
quantify the impact of the oil spill on multiple public
resources. The assessment involves looking at those acute
impacts that we can identify now, and the long-term chronic
impacts, some of which may not materialize for years to come.
All this is being coordinated and directed through the Trustee
Council.
One of the actions the Trustees have taken to ensure
enhanced transparency during the NRDA process is the public
distribution of cooperative assessment work plans and data.
Trustees are posting study plans on the Internet, providing
opportunities for public engagement, and conducting frequent
calls for study planners, scientists and others to assist in
both developing a broad integrated ecosystem perspective, as
well as reviewing numerous restoration possibilities.
We recognize the value of technical expertise and are using
leading researchers from academic institutions and
nongovernment organizations to the extent practicable. In
addition, emergency restoration projects have been initiated to
avoid or reduce irreversible loss of natural resources and to
prevent or reduce continuing danger to the resources.
In April, the Deepwater Horizon oil spill Trustees signed
an agreement with BP to provide $1 billion toward early
restoration projects in 2011 and 2012. This agreement does not
affect the ultimate liability of BP or other entities for
natural resource damages. The early restoration is taking place
on parallel tracks with our assessment work.
We have made a great deal of progress within the NRDA
framework. This is a complex process involving five States and
two Federal agencies. The scope and magnitude of the natural
resource injuries and other impacts resulting from the
Deepwater Horizon oil spill are extraordinary and still not
fully known at this time. We are working to finish our pre-
assessment phase, continue assessment activities in 2012,
prepare for potential litigation, and ensure early restoration
projects are consistent with long-term restoration planning.
The department is committed to work with the Trustees to
fully assess the overall impacts of the spill on the Gulf Coast
ecosystem and restore the natural resource damage.
Mr. Chairman and Members of the Subcommittee, thank you for
the opportunity to testify today. I will be happy to answer any
questions you may have.
[The prepared statement of Ms. Dohner follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Thank you very much.
Mr. Penn.
STATEMENT OF TONY PENN, DEPUTY CHIEF, ASSESSMENT AND
RESTORATION DIVISION, OFFICE OF RESPONSE AND RESTORATION,
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S.
DEPARTMENT OF COMMERCE
Mr. Penn. Thank you, Chairman Cardin, and Members of the
Subcommittee for the opportunity to testify on the status of
the ongoing natural resource damage assessment and restoration
planning for the Deepwater Horizon oil spill.
My name is Tony Penn. I am the Deputy Chief of the
Assessment and Restoration Division in NOAA's Office of
Response and Restoration. I appreciate the opportunity to
discuss NOAA's role and our work to date on the Deepwater
Horizon natural resource damage assessment process, also known
as NRDA.
NOAA and our co-Trustees have been working tirelessly to
assess the ecological and human-use impacts of the spill and to
identify restoration opportunities in the Gulf of Mexico. We
will continue in our efforts until restoration of the impacts
is complete.
My testimony today will discuss NOAA's involvement in the
damage assessment process, the status of the Deepwater Horizon
assessment and restoration, and the successes of the Deepwater
Horizon NRDA.
NOAA, along with our co-Trustees, is charged with assessing
and restoring natural resources injured by an oil spill. The
goal of the assessment process is to determine the type and
amount of restoration needed to compensate the public for
injury to the natural resources. The Trustees also assess
public lost use of those resources such as recreational
fishing, boating, hunting and swimming. The ultimate goal of
the NRDA is to implement a package of restoration projects to
compensate the public for all the ecological and human use
injuries.
At the outset of the Deepwater Horizon spill, NOAA quickly
mobilized staff to begin coordinating with Federal and State
co-Trustees and the responsible parties to collect data that
are critical to inform the NRDA. The Trustees focused on
assessing the injuries to all ecosystem resources from the deep
ocean to the coastlines of the Gulf of Mexico. Information
continues to be collected to assess potential impacts to fish,
shellfish, terrestrial and marine mammals, turtles, birds and
other sensitive resources, as well as their habitat, including
wetlands, beaches, mud flats, bottom sediments, corals and the
water column. Lost human use of these resources such as
recreational fishing and beach use are also being assessed.
Technical teams consisting of scientists and State and
Federal agencies, academic institutions, and BP have been in
the field conducting daily surveys and collecting samples for
multiple resources, habitats and services. To date, several
hundred scientists, economists and restoration specialists have
been and continue to be involved in our NRDA activities.
Through the size of the Deepwater Horizon release and the
potential for injury, NRDA field efforts have far surpassed any
other for a single oil release. As of early June, the Trustees
had approved over 115 study plans and collected more than
36,000 water, tissue, sediment, soil, tar ball and oil samples.
More than 90 oceanic cruises have been conducted since early
May, 2010, and many more are scheduled for the summer and fall
of 2011.
From these sample collection efforts, more than 21,000
laboratory analyses have been completed. Of those, more than
20,000 have been validated through a rigorous quality assurance
process. Once these data clear the validation process, they are
then made publicly available, which is a new milestone in NRDA
transparency.
Concurrent with the injury assessment, NOAA and the co-
Trustees are planning for and implementing restoration. To
date, the Trustees and BP have agreed to implement several
emergency restoration projects designed to curtail further
injury to natural resources. Trustees are also preparing an
environmental impact statement which will identify a range of
restoration alternatives that the Trustees will consider to
compensate the public for lost natural resources and services.
On April 21st of this year, the Trustees announced an
agreement whereby BP agreed to fund $1 billion in early
restoration projects. Public input on early restoration
projects has already begun and will continue through the
summer.
To meet the requests from academia, NGO's and the general
public regarding data and ongoing NRDA actions, NOAA and the
co-Trustees have developed data-sharing and other outreach
practices that have resulted in one of the most transparent
damage assessments i history. One of the key actions the
Trustees have taken is the public distribution of cooperative
assessment work plans and data during the NRDA process.
NOAA has continued to update its publicly accessible Gulf
environmental response management application website, allowing
users to observe data via an interactive map. Along with
providing an unprecedented amount of data during the NRDA, NOAA
and the other trustees have sustained efforts to educate and
communicate with the public.
Since the beginning of the spill, the Trustees have
conducted numerous roundtable discussions with stakeholder
groups and have facilitated stakeholder field trips where NRDA
actions were discussed and observed. As part of the
programmatic environmental impact statement process to solicit
restoration project ideas, 11 public meetings were held across
the Gulf Coast States and in Washington, DC.
The task of quantifying the environmental impact of the
spill is no small feat, but I would like to assure you that we
will not relent in our effort to protect the livelihood of the
Gulf Coast residents and mitigate the environmental impacts of
this spill.
Thank you for allowing me to testify on NOAA's damage
assessment efforts, and I am happy to try and address any
questions that you may have.
[The prepared statement of Mr. Penn follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Let me thank both of you for your
testimony. We really appreciate it. Clearly, we want to make
sure you get this right. So our first objective is to make sure
that we have the best scientific assistance, that we do the
assessment accurately, so that the restoration plan is
effective in restoring to the best that we can the
environmental damage that has been done, and that it is
implemented in an accountable way. So we want to make sure it
is done right.
But we also need to have some understanding of where we are
in the process and how long you believe that process will take.
We understand that a lot depends on the cooperation between BP
and the Trustees. If things go into courts in a contested way,
it can take a longer period of time. But give us some
estimation as to where we are in the process and when you
believe we will be able to look forward to an implementation
agreement.
Mr. Penn. So, where we are in the process, as Cindy
mentioned, we are in the restoration planning phase under OPA,
which includes actual injury assessment. We are in the process
of quantifying injuries to the resources and services.
At the same time, we are undertaking restoration planning.
So we are looking ahead to what can we do to restore those
resources that we are finding have been impacted.
Specifically with respect to the injury assessment process,
we have come a long ways to identifying exposure to the
resources in the Gulf. I don't know if you saw on the map,
whether they be turtles, marine mammals, fish resources,
shoreline habitat, oyster reefs. We have documented that there
has been exposure to these resources. We are in the process of
now moving from, OK, yes, there has been exposure, but under
OPA we have to go to the next step of what are the injuries,
what has been caused by the oil spill that we can quantify that
then we try and restore.
So we are in the middle of that injury causality process.
And again, at the same time, looking forward to what can we do
for restoration of those resources.
Senator Cardin. Is there a guesstimate as to how much
longer that process will take?
Ms. Dohner. May I just add one thing to what Tony said as
far as the assessment as we go forward? We are also looking at
the assessment of the chronic, the long-term impacts and how we
go forward. And as we go forward, each year gives us new
information. And overall, trying to make sure that we
accurately count the acutely injured species. Obviously, the
more information, the more time we have, the better it would be
as we go forward.
Senator Cardin. And I am not trying to rush the process. I
am just trying to get your game plan now as to when you believe
you would complete that phase.
Mr. Penn. So, from our perspective, as you probably now,
DOJ filed suit in this case that included natural resource
damages in December of last year. And so we don't know what
that will mean for the court schedule, but we have to be
prepared when the judge comes around looking at NRDA. So we are
looking at completing another year of field work this year and
looking again next year, and then perhaps having to be ready
for a court schedule.
So in the next couple of years, we are going to have to
have pretty good information on what we have found and where we
are.
Senator Cardin. Which leads me to the early restoration
funding, the $1 billion in April, and that was certainly good
news and I applaud you and BP for releasing the funds so that
restoration work can begin.
But it seems to me $1 billion is a relatively small amount
considering the amount of restoration that will be required and
that early restoration is important. Can we look forward to
additional sums being released before a full settlement is
reached so that the States have additional resources to move
forward?
Ms. Dohner. I think that is unknown at this time, but
whether or not we go forward, we need to deal with the $1
billion that we have go forward with the early restoration
projects that we can do with that $1 billion as we are going
along on a parallel path with the assessment and quantifying
the injury and making sure that we identify uncertainties.
If we do work on a timeline similar to what Tony was
talking about, we need to make sure we also address the long-
term, again, chronic damages that we are unsure of as we go
forward.
Senator Cardin. Well, I appreciate your keeping us
informed, because we do hear from the States and I am sure we
are going to hear more from them today that they are strapped
on resources and that the moneys that are being made available
are being put to good use. It would be I think an encouraging
sign if we could get additional commitments for restoration at
this stage. So if you will work with us on that.
I have one more question I want to ask before turning to
Senator Sessions, and that is this process builds upon the
cooperative relationship between BP and the Trustees which we
know could turn adversarial. It is the nature of the process.
You have to be realistic. We would like to see an agreement. We
may not have an agreement.
Therefore, it is very important that we have an independent
scientific base for what we are doing. During Exxon Valdez, the
NRDA process set up their own council, their own side group of
independent experts. Do you have such a process available to
you in the BP circumstance? Do you have an independent panel
that you rely upon? I know you said you seek independent
verification, but is there a panel that has been put together
similar to Exxon Valdez?
Ms. Dohner. There is not a panel that is put together at
this time. We do have the technical expertise on the technical
working groups and we pull from academia in the States and the
Federal agencies as needed, and a long list. The responsible
parties are part of that technical working group.
So we do have experts in the field as we design these
studies for the long-term restoration, the restoration
projects.
Senator Cardin. Did you consider putting together a panel
similar to Exxon Valdez?
Mr. Penn. We have heard that feedback and that input from
some of our NGO partners. I think if memory serves me right, in
Exxon Valdez that group was I believe set up after there was
settlement to look at how moneys were being spent post-
settlement. As Cindy said, in this case we are pre-settlement.
We do have a lot of technical expertise within these working
groups. NOAA alone is working with 75-some academics, along
with their support staff. And we feel like we have really got
strong technical expertise within our working groups and that
we can speak candidly with some of the experts that we are
working with who we have under confidentiality agreements.
Senator Cardin. Thank you.
Senator Sessions.
Senator Sessions. Thank you very much.
Ms. Dohner, tell us who is in charge of the NRDA process?
In other words, who invokes the meetings and sets the schedules
and makes decisions under this statute, as you understand it?
Ms. Dohner. There are seven different individual Trustees
that are part of this. At this time, there is a new structure
that has been put in place with an Executive Committee that is
helping guide this process.
This process was started at the very, very beginning of the
spill as we were pulled together and has met routinely and
regularly across the board as we go forward with the technical
working groups and working together as a Trustee Council. But
within that Trustee Council, as we go forward on different
things, we have equal votes as we go forward.
Senator Sessions. Is the Secretary of Interior coordinating
and calling the group into session?
Ms. Dohner. Right now, as part of the Executive Committee,
Cooper Shattuck is actually the Chair of that committee and
Cooper is the lead for helping us put together these meetings.
The Trustee Council actually has, as I said, routine meetings
that are scheduled. And with the early restoration, at the last
meeting we had we scheduled an additional one so we could go
forward and work on this early restoration, the project
proposal and the process we have to go through to get them
approved.
Senator Sessions. So if you don't report on time, it would
be Cooper's fault. Right?
[Laughter.]
Ms. Dohner. No, sir. As I said, the Trustees have to work
together.
Senator Sessions. Well, you do. And I hear good things
about the openness with which you are doing the process, but I
did note Mr. Penn previously stated he doubts the NRDA process
will have moved from the planning stage to the implementation
stage by year's end. That may be more likely by the end of
2012. It is a big system.
So I think we share the interest, Senator Vitter and the
Chairman did, that we don't want this to take too long.
Somebody needs to make sure that this moves forward.
Would you comment on that, Mr. Penn?
Mr. Penn. Yes, and I think that the Trustee Council that
has come in with Cooper's leadership has been a shot in the arm
to get the Trustees organized and has focused on some of the
decisions at hand.
I don't want to suggest that we just sort of slowly moving
through the assessment process. I think one of the real
accomplishments so far to date here is the $1 billion of early
restoration and the new council that has been formed is really
focused on identifying projects and looking at how we get to
agreement to get those projects implemented. And I think we
will see restoration in this case long before we would in most
other damage assessment cases because of their leadership and
the focus on getting things in the ground very soon.
Senator Sessions. Ms. Dohner, I may have been unfair when I
said that some of this cleanup hadn't been done by the concerns
of Fish and Wildlife. That was sort of the feedback I had
gotten.
Are you aware of whether the Fish and Wildlife Service has
directed any cleanup efforts to stop as a result of
environmental concerns?
Ms. Dohner. Sir, I was actually down at Bon Secour at that
refuge just earlier this month and there are cleanups going on
right now. There are times that they have asked the cleanup to
stop if there are birds that are nesting, things like that,
natural resources that we would want to protect on the refuge.
But there is a current active cleanup operation going on right
now.
Senator Sessions. Well, there is a danger of spreading and
washing also in high tides and storms. I think it is not
healthy for the environment for it to stay there. So I guess
either by hand or by machinery, I would suggest we might as
well get on the work in accomplishing that.
The other parts, the beaches are fabulously clean and
getting really good reports this year, so we are pleased about
that.
Do you talk, Ms. Dohner, with local officials along the
Gulf Coast, I will ask both of you, concerning their concerns
about how progress is occurring?
Ms. Dohner. Sir, I haven't myself talked with the local
folks, but we have managers that are on the ground and we have
people that are stationed at the incident command that are
talking with the local folks and working with them on their
concerns on how we go forward with the cleanup at the refuge.
Senator Sessions. Mr. Penn, when do you expect that NOAA
will transition from the assessment and planning phase to the
restoration and implementation phrase?
Mr. Penn. Sir, with the early restoration, so right now we
have things going on concurrently. We are doing the assessment
and we are doing restoration planning, and restoration
implementation. We have actually done some emergency
restoration action to prevent further injury to resources. And
with early restoration, we are looking to implement some of
those types of projects here in late 2011 into 2012.
Senator Sessions. Just briefly, there are some concerns
that have been expressed to me by people that I respect that
live in the area that there may be some hesitation to proceed
with the NRDA process while the initial response process is
still ongoing, that BP as the responsible party is responsible
for.
Have you heard, is there any legal concern that they might
say, well, you need to certify that we have finished our
initial response effort before we go any further with the NRDA
process?
Mr. Penn. No, sir. We have moved forward with our damage
assessment at the same time the response started. We are
learning from the response. We are getting information that is
informing the damage assessment. But we are not delayed at all
by the response action.
Senator Sessions. Good. Thank you.
Senator Cardin. Senator Whitehouse.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Thank you, Chairman.
First of all, let me welcome Ms. Dohner here. We just had
over the weekend the 50th anniversary of the University of
Rhode Island Graduate School of Oceanography. And I believe you
got your master's degree from GSO.
Ms. Dohner. Yes, sir.
Senator Whitehouse. We are very pleased to actually have
another GSO person on the following panel, so I am glad to see
the University of Rhode Island Graduate School of Oceanography
so well represented in this hearing.
Mr. Penn, the natural resource damage assessment, as I
understand it, stands on a considerable number of study plans
that are approved, that identify various problems and explore
them. As I understand it, there have been well over 100
approved already. And I understand that the relationship is
that the Trustees and BP negotiate to try to define the study
plans correctly.
What is your sense of how that process has been going? Have
there ever been deadlocks? What happens when there are
deadlocks? I understand that BP is paying for all of this as it
goes, so they have slightly different interests at stake than
you. And I am interested in how that works itself out through
this process.
Mr. Penn. Yes, sir. I think the process is going fairly
well. We have our disagreements on what we would like to see in
study plans. There is kind of the push and the pull that we
have between the Trustees and BP
But ultimately, the decision is the Trustees' on what to
implement, and what we feel we need to do is to make a
defensible damage assessment case. So in the instances where we
cannot reach agreement and we can't get signature on these
plans and BP agree to up front the cost of those studies, we
would take those studies on our own and implement those studies
if we felt that they were necessary to meet our needs of the
case.
Senator Whitehouse. Without BP paying for it at that point
since they are not agreed. What sources of funding do you have?
Do you feel that is a restriction on your ability to proceed
with any of the studies?
Mr. Penn. I do not feel that it is a restriction. We have
been able to up front costs. And in fact, when BP commits, they
sign that they are going to fund these studies. They don't
actually fund those real-time. We incur the costs and then we
recover those costs later.
But any study that we do, the Trustees feel those are
reasonable assessment costs that we will recover eventually, if
not by a written signature saying they agree up front, those
are legitimate costs that we will recover later.
Senator Whitehouse. And you have an account that allows you
to pay the scientists and the folks who are doing the work in
the meantime so that they are not carrying the cost of the
government study?
Mr. Penn. Yes, sir.
Senator Whitehouse. And you are comfortable that works
smoothly, that there is plenty available that is not an issue?
Because that creates no hesitancy on the part of NOAA with
respect to proceeding with studies?
Mr. Penn. That is correct.
Senator Whitehouse. OK. Good. Good to hear.
Thank you, Chairman.
Senator Cardin. Senator Vitter.
Senator Vitter. Thank you, Mr. Chairman.
And thank you both for your work.
Ms. Dohner, can you briefly discuss efforts that have been
undertaken to rehabilitate seafood and in particular the oyster
habitat over the last few months?
Ms. Dohner. Sir, I do know that they are doing work to
evaluate the oyster and the oyster habitat. But as far as the
seafood, I would have to get back to you on that.
Senator Vitter. And what broadly is being done on the
oyster side?
Ms. Dohner. I know that they have looked at what needs to
be done for restoration and those are some of the early
restoration projects that have been evaluated; and also some of
the work that has been done under the technical working groups
on the impacts. But again, I would get back to you with a
better explanation.
Senator Vitter. OK, great. If you could do that followup,
that would be super.
In your testimony, you State that the NRDA process allows
implementation of emergency restoration projects before the
whole assessment is complete. What are the limits on this
authority and what is the potential to expand and expedite that
authority so we are not backloading everything for 8 years from
now?
Ms. Dohner. The emergency projects are designed to go
forward and minimize the injury so that the long-term injury
would be less than what is anticipated. Some of the things that
we have done is shoreline vegetation and going forward with the
shoreline vegetation, or improving habitat that would allow
waterfowl to land in areas that are not oiled, things like
that.
The other process that we have, the early restoration,
would be the overall restoration. So emergency projects are a
little bit different than the early restoration projects as we
go forward.
Senator Vitter. OK. And Ms. Dohner, if you could briefly
discuss both Federal and State rigs-to-reefs programs and their
significance for our fisheries habitat?
Ms. Dohner. Sir, I am sorry. I am not familiar with that
project, so I would have to get back to you.
Senator Vitter. OK.
Mr. Penn, one of the frustrations I hear all the time from
the fishing community, both recreational and commercial, are
challenges with adequate stock assessment and science at NOAA.
This pre-dates BP This is a general frustration. Given that
there are clear shortcomings in NOAA's stock assessments, how
is that complicating your efforts in this context?
Mr. Penn. Sir, we are looking at impacts to fisheries
resources from both a recreational use perspective, as well as
ecological perspective. I am not an expert in this area. I
don't know to what extent we have relied on stock assessments
to do that work. I don't think it has come into play for the
recreational assessment.
On the ecological side, certainly we need to know the
resources that are out there, the types, what might have been
impacted by the spill. We are working through some of those
issues. How do we determine baseline? What is potentially
impacted?
Senator Vitter. I guess that is my question in all of this,
and I don't mean to interrupt, but to get to the heart of it,
you need some baseline. Ordinarily, a logical baseline to go to
would be NOAA stock assessments. I think it is universally
recognized those are not current, up to date, precise, adequate
in any way.
So how do you determine a baseline?
Mr. Penn. Yes, that is a very good question and we could
always use better baseline information across our resources
that we are looking at. In this case, what we are able to do is
a number of things. We are doing some trials now to determine
what is there.
It is not ideal. We would have liked to have been out there
before. But we can also then simulate what creatures would have
been exposed to oil at different concentrations and look at
potential impacts to those species. And then think about how
that applies to the larger system that was impacted.
Senator Vitter. Is any of that work being done in this
context helpful in terms of the broader NOAA stock assessment
responsibility? Because again, I think it is broadly recognized
that NOAA is way behind on that. We don't have good current
stock assessment information.
Mr. Penn. Yes, that is a good point. And we are
coordinating with other NOAA programs that don't typically do
damage assessment work, but that have other monitoring
requirements and responsibilities. We have supplemented what
they have done and then we have enhanced what they have done so
that they can use some of that information going forward.
The specifics for stock assessments, I would have to get
back to you on how what we are doing is feeding into that
process.
Senator Vitter. OK.
Thank you, Mr. Chairman.
Senator Cardin. I want to underscore the point that Senator
Vitter made about the baseline assessments. On our second
panel, there will be testimony of concerns about whether we
have an accurate baseline. I think some of the points that
Senator Vitter raised is very much important to be addressed.
So I would just urge you to use as wide a range of
scientific opportunities that we have in order to try to have
an accurate baseline to assess damages. I think we could do a
stronger job there.
And second, and I think Ms. Dohner you mentioned this
specifically, that by having another season, you will get more
information and you will have more confidence in the
restoration plan. We are concerned about the long-term impact,
what might be discovered after the settlement is reached; after
the court decisions are finished; after the implementation
plans have already started to be implemented.
And I believe I heard from your prior comments that in the
assessment and implementation plans, you attempt to deal with
those issues the best that you can. Would you spend a minute
giving us a little bit more confidence that the unknown that
may develop later, that there will be adequate protection in
the negotiations?
Ms. Dohner. Sir, as part of the assessment studies as we go
forward in trying to assess the long-term chronic impacts, we
are also going to have to have long-term monitoring
incorporated into these studies and also incorporated into the
restoration planning, and overall to make sure that we are able
to, with performance measures within these monitoring plans,
identify any types of impacts that we might not see for years
from now.
Sea turtles, for example, we might not see impacts years
from now, so we need to make sure that is part of the overall
process as we go forward.
Senator Cardin. So we would be protected to make sure that
even those discovered later, it is still part of the plan?
Ms. Dohner. Yes, sir.
Senator Cardin. Thank you.
Any other questions? Senator Sessions.
Senator Sessions. Briefly, we have had reports concerning
the oyster situation. Also, some reports have indicated that
red snapper stocks are showing more lesions when they have been
caught than have been otherwise observed. Some have said it is
not unusual. Those are the kind of things we definitely need to
get to the bottom of.
Mr. Penn, is that under your review? And do you have any
comment on that?
Mr. Penn. Yes, sir. We are looking at the red snapper and
we have heard reports of lesions. I know there is a researcher
at LSU that has indicated findings of more widespread lesions
than might otherwise be expected. So we are looking into that
and are developing some study plans that would look at that
specifically.
Senator Sessions. How long does it take to get that plan
developed and executed?
Mr. Penn. We can develop plans in a matter of days to
weeks. I don't know exactly what the status is of that
particular plan. I know it has been under discussion and we
have been looking at the data that is coming from LSU. And some
of our data that we have collected through some of our trawls,
but not necessarily tied to a particular study plan. So we are
actively working on that issue.
Senator Sessions. Well, we thank you for your attention to
this matter. I do think it provides a historic opportunity to
develop a new baseline, to look at some new research, and to
identify ways not only to recover from the damage that has been
sustained, but also perhaps to manage our stocks and our
wildlife better and to make it more healthy.
So thank you very much.
Senator Cardin. Let me thank both of you again for not just
your testimony, but your commitment to this issue. This is the
second hearing that this Committee has had on the subject. It
will not be our last as we will assist and followup on
oversight as to how the process moves forward.
So thank you very much for your testimony.
Mr. Penn. Thank you.
Ms. Dohner. Thank you.
Senator Cardin. We will now turn to our second panel. And
as they come up, let me yield to Senator Sessions and Senator
Vitter for an introduction before introducing the rest of the
panel.
Senator Sessions. Mr. Chairman, while the panel is coming
forward, it is my pleasure to introduce a fellow member of the
Alabama Bar, Mr. Cooper Shattuck. Mr. Shattuck currently serves
as Legal Advisor to Governor Robert Bentley of Alabama. In that
capacity, he was selected to serve as Chairman of the Executive
Committee of the NRDA Trustee Council. So we get to hold him
responsible for everything, I suppose.
But actually, I am a little concerned that I don't think
any of our leaders have a lot of executive power. They just
have collegial power in this process.
Prior to joining the Bentley Administration, Cooper was a
practicing attorney with the firm of Rosen Harwood in
Tuscaloosa, a good law firm. In addition, he served as Adjunct
Professor of Law at the University of Alabama School of Law,
one of the top law schools in America, I am proud to say.
He is a Bar Commissioner for the Sixth Circuit, which was
elected by his fellow bar members. He is currently a member of
the Alabama State Bar Foundation Board of Trustees; a member of
the Tuscaloosa Bar where he served as President previously. A
bachelor's degree in economics he has from Georgia Tech and a
juris doctorate from Alabama.
He and his wife Christine live in Tuscaloosa. They have
four daughters. He had been an Associate Pastor at First United
Methodist Church there.
And thank you for coming. And I also note his mother is a
good citizen, former citizen of my hometown of Camden, Alabama,
a little community, and they are a great family, and I am proud
of Cooper to be serving on this important position with
Governor Bentley.
Senator Cardin. Mr. Shattuck, welcome.
Senator Vitter.
Senator Vitter. Thank you, Mr. Chairman.
As I mentioned, Garret Graves is here today as a Louisiana
Trustee, and he also serves as the Chair of the Coastal
Protection and Restoration Authority of Louisiana. That is a
State cabinet-level position over all of coastal restoration
and protection.
Before that, I was honored to have him on my staff serving
with me, and he served many Members of Louisiana's
congressional delegation over several years. He was intimately
involved in virtually every WRDA, water resources, coastal
restoration-related bill going through this process while he
was up here; very, very able. And I know Louisiana's interests
are in very good hands.
Senator Cardin. Thank you.
Senator Whitehouse.
Senator Whitehouse. I just want to recognize Dean Leinen,
this is, as I said earlier, a banner day for the URI Graduate
School of Oceanography, with both a graduate in the first panel
and a former Dean on this panel. Dean Leinen was kind enough to
return to the Graduate School of Oceanography for the 50th
anniversary celebration, and if my timing is right, I think she
was actually Dean of the graduate school at the time my wife
got her Ph.D. in marine science from the graduate school.
So in any event, she was a good friend her years a Dean in
Rhode Island and I am delighted to have her here.
Unfortunately, we have lost her to Florida in the meantime, but
there is always hope.
[Laughter.]
Senator Cardin. And Dr. Boesch could have been introduced
also by Senator Vitter since he is a native of Louisiana, but
now he is a Marylander, so I will take the honor of introducing
Dr. Boesch.
He has been a strong advocate for us in Maryland, part of
the University of Maryland Center for Environmental Science. He
has been a personal adviser to me on many of the environmental
issues. And he comes to us as a member of President Obama's Oil
Spill Commission.
Dr. Boesch examined the causes of the Deepwater Horizon
explosion and recommended improvements to Federal laws,
regulations and industry practices to both prevent and mitigate
future spills. He has a strong background in biological and
ocean issues, and it is a pleasure to have you once again back
before our Committee.
And we have another Marylander, Dr. Eric Rifkin, who comes
to us through the National Aquarium in Baltimore. Dr. Rifkin is
the interim Executive Director of the National Aquarium
Conservation Center, which partnered with Mote Marine
Laboratories in Florida and Johns Hopkins University to study
new technologies for measuring low levels of oil spill
contaminants.
I think this is cutting-edge information that helps us
better assess the amount of damage that has actually been done.
He has been able to actually develop techniques that are more
sophisticated in determining areas that we thought were not
affected, which in fact were affected by the BP oil spill.
So Dr. Rifkin, it is also a pleasure to have you here, and
also another Marylander on the panel.
We will start with Dr. Boesch and work our way down.
STATEMENT OF DONALD BOESCH, PROFESSOR OF MARINE SCIENCE AND
PRESIDENT OF THE UNIVERSITY OF MARYLAND CENTER FOR
ENVIRONMENTAL SCIENCE, MEMBER OF THE NATIONAL COMMISSION ON THE
BP DEEPWATER HORIZON OIL SPILL AND OFFSHORE DRILLING
Mr. Boesch. Thank you, Senator Cardin.
Senators, I am very appreciative of the opportunity to
testify today. I ask that revised testimony just changed to
include more specific references and sources be included in the
record.
Senator Cardin. It will be. And all of your statements will
be included in the record.
You may proceed as you wish. Thanks.
Mr. Boesch. I was very actively engaged in scientific
research on the long-term environmental issues in the Gulf of
Mexico and the impacts of offshore oil and gas development
before leaving Louisiana 21 years ago to, as Senator Cardin
indicated, head the University of Maryland's Center for
Environmental Science.
I suspect it was for this reason, my familiarity with the
issues surrounding the oil spill that the President appointed
me to serve as one of seven members of the National Commission
on the BP Deepwater Horizon Oil Spill and Offshore Drilling.
So my perspectives are really those of the commission that
I will present today.
The natural resources damage assessment was not central to
our investigation, and in any case, was still in a very early
stage as we completed our report in January. Nonetheless, the
commission's report does discuss and offers some
recommendations concerning the ongoing NRDA.
The goal of NRDA is to make the environment and public
whole for injuries to natural resources resulting from this oil
spill. These injuries are quantified by reference to conditions
that would have existed had the incident not occurred. Now, we
recognized on the commission that establishing such baseline
conditions is challenging, not only because of the paucity of
background data and natural variability, but because many Gulf
Coast habitats have been substantially degraded over decades
from pressure from industrial, agricultural, commercial and
residential development.
To illustrate this long-term degradation, I included in my
written testimony a simple graph that shows the rate of wetland
loss in Louisiana and how it spiked during the 1970's when we
had a very aggressive program of dredging canals and wetlands
for oil and gas exploitation, as well as transportation.
The Oil Spill Commission recommended that the Trustees
ensure compensatory restoration under NRDA process is
transparent, appropriate, and to the degree possible,
apolitical by, one, as Senator Cardin mentioned in his
introduction, an appointed independent scientific auditor to
ensure that projects are authorized on the basis of the ability
to mitigate actual damages caused by the spill; second, that
any potential settlement agreement provided for long-term
monitoring and assessment of the affected resources for a
period of at least 3 years; and for enhancement of the damages
beyond the baseline.
And third, hewing as closely as possible to the in-place/
in-kind principles that underpin NRDA regulations to ensure
that the injured public resources are made whole to the fullest
extent possible regardless of State or Federal boundaries.
The recent agreement to support early restoration presents
a promising opportunity to begin to restore impacted resources
without waiting years for full compensation of the NRDA, when
damage restoration may prove less effective. However, it also
presents opportunities for misallocation of these resources.
From the beginning, it allocates early restoration funding
equally among the States and Federal Trustees despite the fact
that there are disparities among these natural resource
damages.
This potentially, if this principle continues, could
compromise the in-place/in-kind principle in a way that
concerned the commission.
The framework agreement also states that early restoration
projects must be consistent with the Oil Pollution Act in
meeting criteria for making the public whole for injuries from
the oil spill. To avoid politically expedient approaches that
might miss the mark in terms of compensatory restoration,
appointing an independent scientific auditor to a review board
to ensure that projects are authorized on their basis to
mitigate actual damages caused by the spill to the degree
possible would be prudent.
A scientific audit could also independently evaluate the
degree to which the natural resource damage offsets to be
credited against the damages due to the responsible party for
these projects are measured, calculated and documented using
the best available science.
The impacts of the Deepwater Horizon oil spill come, as I
mentioned, on top of longer-term degradation of important
habitats and resources of the Northern Gulf of Mexico,
including loss of coastal wetlands that Senator Vitter
mentioned, recurrent hypoxia, the so-called dead zone, over-
fished populations and endangered species.
The Oil Spill Commission identified that a restoration
effort that is well funded, scientifically grounded and
responsive to regional needs and public input would be very
consistent with the recommendations that Secretary of the Navy
Ray Mabus made earlier last year. The commission recommended
that Congress dedicate for this purpose 80 percent of the Clean
Water Act penalties, as Senator Vitter mentioned earlier in his
discussion of legislation. A Gulf Ecosystem Restoration Task
Force chaired by EPA Administrator Lisa Jackson and co-chaired
by Mr. Graves is developing a Gulf of Mexico ecosystem
restoration strategy, which is due in October 2011.
Legislation to dedicate the funds and establish a council
to administer them has seemed, to me at least, stalled in
Congress, in part because of a lack of consensus among the Gulf
States over the scope and permissible uses of the funds and,
once again, allocation among the States. Senator Vitter's
announcement that a markup will take place is a hopeful sign
that we may see some progress on that.
The Oil Spill Commission in looking at this issue concluded
that it was most compelling from a national perspective if the
application of these funds focused on ecosystem restoration,
and we argued that the criteria should be national
significance, contribution to achieving ecosystem resilience,
and the extent to which national policies such as flood
control, oil and gas development, agriculture, navigation
directly contributed to the environmental problems that require
the restoration.
So thank you very much.
[The prepared statement of Mr. Boesch follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Thank you, Dr. Boesch.
Dr. Leinen.
STATEMENT OF MARGARET LEINEN, VICE-CHAIR, GULF OF MEXICO
RESEARCH INITIATIVE REVIEW BOARD; EXECUTIVE DIRECTOR, HARBOR
BRANCH OCEANOGRAPHIC INSTITUTE; ASSOCIATE PROVOST FOR MARINE
AND ENVIRONMENTAL INITIATIVES, FLORIDA ATLANTIC UNIVERSITY
Ms. Leinen. Thank you, Mr. Chairman and Members of the
Subcommittee.
My name is Margaret Leinen. I am the Vice Chair of the Gulf
of Mexico Research Initiative Review Board. I am also Associate
Provost for Marine and Environmental Initiatives at Florida
Atlantic University and Executive Director of Harbor Branch
Oceanographic.
My remarks today were prepared by Dr. Rita Caldwell of the
Gulf of Mexico Research Initiative and one of your
constituents, Senator Cardin.
In May, 2010, BP committed $500 million over a 10-year
period to create an independent research program to study the
impacts of the Deepwater Horizon oil spill on the Gulf of
Mexico. The program, known as the Gulf of Mexico Research
Initiative, or GRI, is directed by an independent research
board. The research board is responsible for identifying the
research priorities, preparing requests for proposals, enabling
an open and transparent process for review, selecting proposals
for funding based on that review, and reviewing annual progress
for continuation of funding.
Although the GRI was announced in 2010, it was not until
March 14, 2011 that the master research agreement was signed.
That agreement between BP and the Gulf of Mexico Alliance
provides the operational structure for the GRI.
As stated in that master research agreement, the GRI is an
independent scientific research program and is separate from
the natural resources damages assessment process, and BP agrees
that the participation of the Alliance in this agreement shall
not result in a credit against or defense to any claims for
natural resource damages or assessment costs. So we are
independent of NRDA.
The objectives of GRI are to study the impacts of the oil,
dispersed oil, and dispersant on the ecosystems of the Gulf of
Mexico and affected Gulf States in a very broad context of
fundamental understanding of the dynamics of these events, the
associated environmental stresses, and public health
implications.
The GRI will also support the development of improved oil
spill mitigation, oil and gas detection characterization, and
remediation technologies.
Ultimately, the goal is to improve society's ability to
understand and respond to events like this and to understand
the effects on coastal ecosystems, with an emphasis on Gulf of
Mexico.
We have establish and are implementing peer-reviewed
competitive grant programs to support research that advances
this understanding in five areas: first, physical distribution,
dispersion and dilution of petroleum, its constituents and
associate contaminants such as dispersants under the action of
physical oceanographic processes, air-sea interaction and
tropical storms.
Second, the chemical evolution and biological degradation
of petroleum dispersant systems and their subsequent
interaction with coastal, open ocean and deep water ecosystems.
Third, environmental effects of the petroleum dispersant system
on the sea floor, water column, coastal waters, beach
sediments, wetlands, marshes and organisms, the science of
ecosystem recovery.
Fourth, technology developments for improved response,
mitigation, detection, characterization and remediation
associated with oil spills and gas releases. And fifth,
fundamental scientific research, integrating results from the
four other themes in the context of public health.
The Research Board has released two requests for proposals,
which we call RFP-1 and RFP-3. We anticipate issuing another
request for proposal later this year. The first of these, RFP-
1, was announced on April 25th of this year. Through this
program, a minimum of $37.5 million per year will fund
approximately four to eight research consortia to study the
effects of the Deepwater Horizon incident.
It is anticipated that each grant will be for up to 3 years
and will range between $1 million and $7.5 million per year.
The research will be conducted through these consortia and must
address one or more of the five areas that we have described.
The proposals are being accepted until the 11th of July and we
anticipate announcing the results of this competition August
30th.
The second RFP will be for funding smaller research teams.
It will focus on individual investigators with up to three co-
principal investigators; a maximum of $7.5 million per year
will be available for those grants.
And earlier this year, the Research Board recognized the
need to provide short-term or emergency funding to sustain some
data collection that had already begun over the summer. On June
7th, we announced the availability of $1.5 million of emergency
funding, and are conducting an expedited review of proposals
that we have received. We anticipate announcing the results of
that competition at the end of this week.
So the GRI supports research that contributes to our
understanding of how the Gulf of Mexico was influenced by the
Deepwater Horizon oil spill and how this rich and dynamic
environment is recovering. This information will undoubtedly be
useful and informative to the NRDA program and we expect it to
provide valuable insight for the long-term analysis of
ecosystems since it lasts for 10 years.
Thank you very much for the opportunity.
[The prepared statement of Ms. Leinen follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Thank you very much, Dr. Leinen.
Dr. Rifkin.
STATEMENT OF ERIK RIFKIN, INTERIM EXECUTIVE DIRECTOR, NATIONAL
AQUARIUM CONSERVATION CENTER, NATIONAL AQUARIUM
Mr. Rifkin. Good morning, Chairman Cardin, Ranking Member
Sessions and remaining Members of the Subcommittee. Thank you
very much for inviting me to testify today.
On July 27th of 2010, approximately 1 year ago, the
National Aquarium was invited to testify before this Senate
Subcommittee on a hearing titled Assessing Natural Resource
Damages Resulting from the BP Deepwater Horizon Disaster.
At that time, I emphasized the importance of independent
research to address concerns related to our ability to
accurately quantify potential chronic damages to natural
resources in the Gulf. The rationale for this view was and
still is based on the concern that the current NRDA process is
not using a methodological approach which adequately measures
small quantities of petroleum contaminants which could have
chronic impacts on aquatic biota. And this is important because
small amounts of contaminants in the water and in the sediment
porewater through a process called bioconcentration or
biomagnification can increase exponentially in aquatic flora
and fauna.
More specifically, my testimony and the written testimony
of the other researchers on the panel at that time suggested
that devices called passive diffusers can be used to measure
low levels of petroleum in order to accurately characterize
ecological risks and impacts.
Since the last hearing, as Senator Cardin mentioned
earlier, the National Aquarium Conservation Center, in
collaboration with the Mote Marine Laboratory and Johns Hopkins
University, has deployed sophisticated petroleum contaminant
samples as deployed by the USGS well over a decade ago, using
semi-permeable membrane devices, the acronym for which is
SPMDs. These devices function as virtual fish and provide
unparalleled time-integrated data on low levels of petroleum
contaminants in the water column and sediment porewater, data
necessary for assessing potential chronic impacts.
By using the SPMDs, we were able to level low levels of
individual PAHs, these are organic pollutants found in
petroleum, in the water column and in the porewater in areas
impacted by the BP spill. Our preliminary findings support the
contention that data obtained by these devices when
incorporated into bioconcentration models, will provide a far
more accurate assessment of the nature and extent of chronic
damages in the Gulf than the standard approach of using grab
samples for water and sediment.
Our samples came from impacted areas off the coasts of
Louisiana, Mississippi, Alabama and Florida. A number of months
ago, we had an opportunity to meet with representatives from
the Environmental Protection Agency so that we could share our
preliminary results with the agency and obtain advice and
guidance from their research scientists.
At our meeting and subsequent conference calls, EPA
scientists support the view that there was value in using these
passive diffusers to monitor levels of these so-called PAHs.
Incorporating EPA's technical suggestions, we refined our
method and once again deployed these devices in Barataria Bay,
which is in Louisiana, as you all know. The results from this
recent effort should provide values which can be used to model
the bioconcentration of contaminants in the food chain, provide
empirical data which can be used in bio-assays to assess and
quantify chronic damages, and reduce the level of uncertainty
when assessing chronic damages from exposure to oil from the BP
spill.
The ramifications of our findings should not be
underestimated. To date, the vast majority of water and
sediment grab samples obtained for the NRDA have resulted in
PAH concentrations being reported as ND or non-detect. That is,
below the analytical detection limit. Non-detect equates to
zero.
So the assumption has been made that there are
insignificant damages to natural resources from the released
PAHs. However, the PAH values below detection and predetermined
benchmark values from grab samples doesn't mean that PAHs are
absent or present at levels which are not harmful.
The NRDA protocols reports the use of benchmark values as
the basic determinant for whether concentrations of PAHs and
other contaminants constitute an ecological risk. However,
benchmarks are only meant to be used for screening purposes
only. They are not regulatory standards or criteria. Benchmarks
cannot be validated for all sites and situations. They can be
defended only in terms of regulatory precedent.
And while EPA and other agencies provide broad guidelines
for the assessment of benchmark end-points, specific end-points
are not identified. A meaningful NRDA must be able to
incorporate empirical data in economic models in order to
accurately assess chronic damages and injury to natural
resources in the Gulf. This perspective should certainly apply
here, given the magnitude and scope of this oil spill.
In light of our preliminary findings, there are reasons to
give serious consideration to expanding the use of these
diffusers in impacted areas of the Gulf as soon as possible.
This will increase our ability to assess causality between the
release of oil and injured resources and/or lost human use of
those resources and services.
I thank you very much for your time.
[The prepared statement of Mr. Rifkin follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Thank you, Dr. Rifkin.
Mr. Graves.
STATEMENT OF GARRET GRAVES, CHAIR, COASTAL PROTECTION AND
RESTORATION AUTHORITY
Mr. Graves. Thank you, Mr. Chairman, Ranking Member, and
Senators, I appreciate the opportunity to be here. My name is
Garret Graves and I serve as the Chair of the Coastal
Protection and Restoration Authority of Louisiana. It is a
State agency that was created after Hurricane Katrina to be the
single State entity charged with coastal sustainability,
hurricane protection and other coastal resource issues in the
State of Louisiana.
Mr. Chairman, I think it is important to provide some
background for the conditions in coastal Louisiana prior to
this disaster occurred. Going back about 80 years ago, Federal
levees put on the lower Mississippi River was the primary cause
of the loss of approximately 1,900 square miles of coastal
wetlands, and these are jurisdictional wetlands just like you
or I would have to get a permit for impacting.
There has been no mitigation done for that 1,900 square
miles of loss. In addition, over the last 6 years we have been
impacted by Hurricanes Katrina, Rita, Gustav and Ike that all
took an extraordinary toll on our State.
I tell you that because our coastline is very different
than the other 35 coastal States and territories in this
Country. It is a very fragmented coastal area, with a lot of
nooks and crannies. If you measure the shoreline from
Mississippi to Texas, you get about 800 miles. But if you
actually measure the actual tidal shoreline, it is much closer
to about 8,000 miles. So it is a very, very different coastline
and trying to protect that area from oil was a very
extraordinary challenge.
At the same time, this coastal ecosystem is very, very
productive. U.S. Fish has called it the most productive
ecosystem on the continent. Approximately 90 percent of the
marine species in the Gulf of Mexico are dependent upon that
estuary in coastal Louisiana for at some point in their life
for survivability. Ninety-eight percent of the fisheries and
shellfish that are commercially harvested in the Gulf of
Mexico, again, are dependent upon coastal Louisiana's wetlands
and our unique estuary, where 90 percent of the fresh water
that flows into the Gulf of Mexico comes through our State.
At the same time, this area is home to 5 million waterfowl,
25 million songbirds, and is the largest wintering habitat for
migratory songbirds and waterfowl. So again, a very, very
productive area. It is home to 70 rare, threatened and
endangered species, and the coastal wetlands that we have lost
played an important role not just in terms of ecosystem
services, but also in terms of keeping a buffer between the
Gulf of Mexico and our populated communities. We saw the impact
of that after Hurricane Katrina.
On the economic side, Mr. Chairman, if you collectively
look at the five Gulf States, the GDP of those areas, if it
were compared to a nation, it would comprise the seventh
largest economy in the world. So much economic activity is
ongoing there. In coastal Louisiana alone, we have five of the
top 15 ports and approximately 20 percent of the Nation's
waterborne commerce comes through our ports and river systems,
which is hundreds of billions of dollars annually. And at the
same time, this area produces or transports approximately one-
third of the oil and gas that is consumed in the United States.
So from an economic side, the Gulf Coast, coastal Louisiana
is very, very important.
Though we have had these historic challenges, we have been
able to make progress in recent years. The State of Louisiana
has made unprecedented investment in trying to restore our
coastal wetlands. And as a matter of fact, in recent weeks the
U.S. Geological Survey released a report indicating that it
appears that we have created approximately 200 square miles of
land, while the historical loss rate has been anywhere from 11
to 16 square miles on average over the last 80 years. We in the
last 3 years have perhaps created up to 200 square miles. So we
are making progress.
This oil spill came in the worst place because of the
productivity of this ecosystem. And it came at the worst time
because we were rebounding. We reversed the loss of the trend
that had been ongoing for decades.
To give you a few spill statistics, 92 percent of the
heavily and moderately oiled shorelines were in coastal
Louisiana. And even today, 100 percent of the heavily, over 99
percent of the moderately, 81 percent of the light and about 96
percent of the very light shorelines oiled are still in coastal
Louisiana today. Over 60 percent of the marine species, the
birds, the mammals, the fish that were collected, that were
injured, sick or oiled during this oil spill were collected in
coastal Louisiana. So incredible impacts on our State.
I am going to flip over to the response and the NRDA side
very quickly. BP is to be commended for coming to the table
with their checkbook. I think it is a very, very important
thing to keep in mind. They came to the table with mental
health dollars, with tourism funds, seafood safety and
marketing funds. And we very much appreciate that.
But I want to paint the box that we are in today. As you
very well know better than I do, this Country is facing fiscal
challenges. Our State is facing fiscal challenges. There is a
$1 billion cap on the oil spill liability trust fund to fund
oil spill response activity, including NRDA; a $1 billion cap.
We are over $900 million in expenses from this disaster so far.
And so the only source of money for us in this case is BP
It is the only source of funding to a large degree to fund
response, to fund NRDA operations.
Mr. Chairman, I think that equation needs to be flipped
over. I think that the public should be in the driver's seat.
By being able to control the checkbook, you can control what is
in these work plans, how the NRDA assessments are conducted,
the timeline of the NRDA assessments, perhaps losing access to
ephemeral data because of the negotiations ongoing with these
work plans.
BP at the same time has hired armies of attorneys, of
marketing firms, of P.R. campaigns, lobbyists, scientists,
consultants and other experts. And we have to compete with
that, the States do, the Federal Government does. And as long
as we are not provided access to the funds that are needed for
us to truly put up a strong case for the public, it perhaps
provides a situation where the public's resources, the public's
trust is not properly represented. And I think that equation
needs to be entirely flipped over.
Three other quick points. I think it is important, the
question, and I know, Senator Sessions, you have an extensive
legal background, what other situation do you have where the
defense is allowed to govern or rein in the plaintiffs in terms
of the activities they carry out through exercising their
governance of the funding? I don't know of any other scenario.
The NRDA process does take too long, as has been noted.
Senator Vitter and Senator Landrieu did file legislation to
require a down payment. I think that is critical. Our citizens
have already been victimized. Our economy has been victimized.
And by allowing for a 10-year, 15-year or 20-year process for
recovery of that ecosystem and those natural resources is
unacceptable. And for the statutory confines to allow for that,
I think that needs to be revisited.
We need to have accurate science, Senator, Mr. Chairman, we
need to have accurate science and base our recovery upon that.
But at the same time, we can't allow these resources to sit in
a degrades State for decades. It is inexcusable to the public.
The last point I would like to make is that I know this
Committee has jurisdiction over the Clean Water Act. I think I
represent all Gulf States in saying that we strongly support
the recommendations of the National Oil Spill Commission,
Secretary Mabus and others that have recommended that those
funds be returned to the Gulf States for environmental-type
uses.
I don't think it is appropriate for the Federal Government
to profit from the loss that has occurred in the Gulf Coast.
Thank you.
[The prepared statement of Mr. Graves follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Thank you very much for your testimony.
Mr. Shattuck.
STATEMENT OF R. COOPER SHATTUCK, CHAIRMAN, EXECUTIVE COMMITTEE,
NRDA TRUSTEE COUNCIL, LEGAL ADVISER TO GOVERNOR BENTLEY
Mr. Shattuck. Thank you, Chairman Cardin, Ranking Member
Sessions, Members of the Subcommittee. Thank you for the
opportunity to speak today.
Thank you, Senator Sessions, for that most gracious
introduction.
I won't bore you with the statistics for the significance
and the size of the oil spill, which we all know too well.
Suffice it to say it was unprecedented. It has impacted five
States along the Gulf Coast and the Gulf of Mexico itself,
which is one of the United States' greatest resources. Impacts
to the Gulf include commercially important aquatic life;
endangered or threatened species of turtles, birds and marine
mammals; habitat use; migration patterns and erosion; and most
significantly, the loss of use of these resources.
The Gulf is an essential habitat for countless species of
fish and shellfish; contains numerous species of marine
mammals, many of which are protected or endangered; turtles;
marshes that provide feeding and nesting habitat for offshore,
near-shore and marsh birds. And the presence of oil in these
habitats may lead to decreased habitat use in the area, altered
migration patterns, altered food availability, and disrupted
life cycles.
The oil may also cause plants to die, whose roots stabilize
the soils and thus lead to erosion.
And this is not to mention the loss of use of these
resources, which for Alabama, like many of the other States
along the Gulf Coast, is a significant factor.
Travel-related expenditures in just one of our counties has
been reduced by $500 million as a result of the impact of the
oil spill. Commercial seafood landings, as Senator Sessions
pointed out, are down 50 percent from 2009.
The response to the spill from a natural resources
perspective has also been unprecedented. The NRDA Trustees have
secured $1 billion from BP for early restoration projects in
the Gulf. The fact that the Trustees and the responsible party
have even attempted to address early restoration of this
magnitude is extraordinary.
The sum secured for early restoration alone is larger than
the entire NRDA restoration process for the Exxon Valdez spill.
Under the framework for early restoration, each Trustee, the
five States and the Department of Interior and NOAA will select
and implement $100 million in projects, with the remaining $300
million used for projects selected by NOAA and the Department
of Interior from proposals submitted by the State Trustees.
This agreement would not have been possible without the
combined and concerted efforts of all of the Trustees working
together. With so many resources and agencies involved in this
daunting, but incredibly important task, it is essential to
ensure continuing cooperation and coordination to guarantee
that restoration of our natural resources is carried out to the
benefit of all, both from an early restoration perspective and
for the long-term benefit of the Gulf as a whole.
In order to manage these early restoration processes and
continue the assessment that has been ongoing for some time,
the Trustee Council has formed an Executive Committee. The
committee is made up of representatives from each of the
Trustees. We have also created subcommittees dedicated to
specific tasks as part of our charge, each of which is chaired
by a representative of the trustees.
The executive committees themselves work together to make
sure that each Trustee is represented in an equal and balanced
manner, to ensure that the priorities and goals of all Trustees
are achieved.
The resource assessment process and early restoration
project selection present many challenges, given the magnitude
of this disaster, its widespread impact, and the number of
parties involved. Each State was impacted differently and all
may have unique priorities for the needed restoration, as may
each Federal agency.
Even within a State or agency, there will be different
approaches and ideas about how to meet these needs and achieve
these goals. After all, restoration on this scale has never
been done before. All of the different perspectives and ideas
have the potential to lead to many disagreements over how best
to assess the damages sustained and how best to spend the funds
to restore our natural resources.
Such disagreements could easily manifest themselves between
the States, between the States and the Federal Government, and
between the different Federal agencies, or between Democrats
and Republicans. However, we must be reminded that the natural
resources do not share our notions of boundaries and borders. A
fish does not realize when it crosses from the waters of
Mississippi into Alabama, or from State waters to Federal
waters.
Wetlands do not begin an end indiscriminately at State
borders, but instead cross them. An oyster does not know
whether it sits in the waters of a red State or a blue State.
Just as it was necessary for us to frame our initial
discussions in fairness for the common good of all, we will be
challenged to eliminate disputes based on our boundaries and
maintain our focus on the ultimate goal of restoring the Gulf
of Mexico's natural resources and hold the responsible party
responsible.
But we have created and experienced the precedent that will
allow us to accomplish just that. From the beginning of this
disaster, it was essential that the States and Federal
Government work together through the response and cleanup
process and we did. And as we began the monumental task of
assessing the extend of the injuries to our natural resources,
the need for cooperation became pronounced, and we have done
just that.
Obtaining $1 billion for early restoration projects set new
standards for our ability to tackle obstacles and succeed by
uniting for a common good. The cooperation between the five
States is unprecedented, and the cooperation between the States
and the Federal agencies has likewise been unprecedented, and
the need continues.
We simply must remain united against the responsible party
to see that the damages caused by this disaster are indeed
corrected and restored.
The communication and cooperation has and will continue as
we select early restoration projects. Though the full extent of
the damages to the resources is not yet known, all agree that
there must be a nexus between the oil spill, the injury and the
projected benefits of the project. Cooperation is not only
necessary for the selection of the projects, but the
implementation of them as well.
I would like to report that the process is going well. We
have challenged ourselves to some fairly demanding timelines.
Our plan is to select an initial set of early restoration
projects in July of this year. Even as early restoration
projects are selected, negotiated and implemented, the NRDA
process will continue in order to determine the full extent of
the damage to our resources and our long-term restoration
plans.
Thus far, the NRDA process must be measured as a tremendous
success. We have secured an historic sum of money within a year
of the tragedy which created this assessment, and the
monumental task continues as to what will undoubtedly result in
the most widespread and thorough analysis of a significantly
large ecosystem as has ever been attempted.
All of this is unprecedented. We rest assured that if the
successes of this process are to continue, such cooperation
that we have experienced between the States, the Federal
Government and all of the agencies affected will not be a
luxury, but will be a necessity.
I am confident that it will continue, and everything that
has made this process unprecedented will create a precedent by
which future cooperative efforts will be possible.
Thank you.
[The prepared statement of Mr. Shattuck follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Whitehouse.
[Presiding] Thank you, Mr. Shattuck.
Since I will be chairing the remainder of the hearing and
will therefore by definition be here until the end, I will not
insist that my distinguished Ranking Member wait through my
questioning, but I will yield to him so that he may proceed.
Senator Sessions. Thank you, Mr. Chairman. We have done
this before on the Judiciary Subcommittee that you and I
participated in as Ranking and Chair.
Mr. Shattuck, thank you for your comments. I am pleased to
see the emphasis on collaboration and cooperation and openness
in the process. The only flip side of that coin a bit is
somebody in charge and can we make sure it happens on time? But
you have already selected projects that would commence before
the year is out. Is that correct?
Mr. Shattuck. We are in the process of selecting projects.
We hope to have the selected by the end of July, to be
implemented before the end of this year. Yes.
Senator Sessions. And of the 80 trustees, do they vote
individually? Is that how decisions are made on these projects?
Mr. Shattuck. Yes, sir. Each Trustee, and there are seven,
one from each State, one from NOAA and one from the Department
of Interior. Each have a vote on selecting a project. Projects
are selected by a majority vote and then we will move forward
with the process of negotiating with BP the offsets for those
projects.
Senator Sessions. Back to a fundamental question on the
NRDA process. To what extent do you consider it, and the
trustees, to what extent do you consider that the process to
make the region entirely whole? Or is it just a part of it?
Mr. Shattuck. It is just a part, unfortunately. It
addresses only the damages to natural resources, and that is
its limit. And unfortunately, the damages that Alabama has
sustained, for example, are much greater than that. Though many
of the damages we have sustained are tied to the loss of our
natural resources and the loss of use of our natural resources,
the NRDA process doesn't address those economic losses for
individuals, businesses or the State itself.
Senator Sessions. Well, I know Governor Mabus was very
clear on that in his report, which is really dealing, I
suppose, more with the Oil Spill Act damages that eventually
have to be paid by BP under the Oil Spill Act. But he noted
this section outlined a proposal for Congress to create a new
Gulf Coast Recovery Council that would be funded in part by
civil penalties collected under the Act and which would work to
facilitate environmental restoration and economic recovery and
attend to the health issues arising from the spill.
Is that what you understand that will be the next project
or another project that could be going on contemporaneously
with this project?
Mr. Shattuck. Yes, sir. And we hope that Congress will
consider giving the States, as Mr. Graves pointed out, 80
percent of the Clean Water Act funds that might ultimately be
assessed to address all of those losses, whether they are
environmental or economic.
Senator Sessions. And whereas there has been some language
in the legislation I have seen that proposed giving States a
certain proportion by State, most of the money as I have seen
in the legislation will be based on an overall need process. Is
that what most of the legislation says?
Mr. Shattuck. That is what I understand.
Senator Sessions. I would just comment on a number of
things. I felt very strongly that this accident should not have
happened. And I think the reports are showing that. I feel very
strongly that the responsible party, the one that by law signs,
no matter whether subcontractors are liable or not, they are
responsible for all of the damages, and that is BP And they are
responsible to their last dollar of their corporate existence,
as far as I am concerned.
I think they have moved forward and in some ways been very
helpful in this $1 billion. I think they were not legally
required to produce it this soon. Is that correct?
Mr. Shattuck. That is correct.
Senator Sessions. I thought that was a positive step on
their behalf of sustained and unprecedented damage and the size
of the spill. And I would note that I am very unhappy that
there was not the kind of capping mechanism already constructed
that you would have thought the oil company would have had to
shut this thing off shortly after it happened.
Now, Mr. Reilly on the part of the commission, and Mr.
Rifkin, was that the commission you served on with Mr. Reilly?
You did?
Well, he testified here a month or so ago that there now
has been designed a cap that could be put over any blowout like
this that would in a matter of days be able to capture that. Is
that your understanding?
Mr. Boesch. Senator Sessions, that is correct. There are
two industry groups that have developed that capacity. And if
you remember the controversies over the permits reassuming the
deep water drilling, a large part of the demonstration to meet
these new requirements was to demonstrate that they had this
deep water containment capability.
So after those two groups developed that they had the
capacity satisfactory to the assessment of the Department of
the Interior, it was at that point that they granted the permit
to resume deep water drilling.
Senator Sessions. Well, Mr. Graham Reilly, former head of
EPA, did testify. He thought that had the capacity to be done
in a matter of days. So we went 90 some odd days. How many
days? Almost 90 days of pouring oil that really was a thing
that is most concerning about it.
So, Mr. Chairman, I do think that we have learned a
tremendous amount from this process. The United States has
benefited dramatically from the production of oil and gas from
the Gulf. It needs that oil and gas for our economy, jobs and
growth. I hope that we will be able to continue it. We have
learned how to remediate and I think we have learned how to
stop an accident if it ever were to happen again, and frankly
should not have happened the first time. But I do believe we
have a capability now to shut it off.
So hopefully, the Gulf Coast area is ready to go forward in
the future. We want to fix our economic problems that have been
severe. And we also want to use this as an opportunity for, as
I know you share, an assessment, a baseline and future
projection for a more productive and environmentally positive
environment on our coast.
Thank you for participating and allowing me to participate
in this hearing.
Senator Whitehouse. Thank you, Senator Sessions.
I think we learned a lot from this incident about the
status of our baseline research along our coasts and oceans.
Senator Vitter was very eloquent a little while ago on how far
behind we are on the stock assessments and how dated most of
those are in areas in which coastal flooding and weather events
and increasing ocean levels and all of that are affecting what
can happen along the shores, and the development capacity of
the shoreline and what needs to be protected and buttressed.
And we seem to be way behind on LIDAR studies. Our physical
oceanography, we seem to have a far from robust baseline in
terms of our currents and temperatures.
If we are going to address the issues that we face in our
oceans and along our coasts, how much do we need to improve our
baseline research capability, our awareness of what is going on
out there, and what are the best methods to do it?
And I will go right across the table. This is not a Gulf-
specific question. This is a generic question.
Dr. Boesch.
Mr. Boesch. Yes, Senator, I couldn't agree with you more.
We need to have better information about our national ocean to
make prudent decisions about it. Since the commission did focus
on the Gulf, let me make just a few comments.
First of all, we were shocked to see that as the industry
moved into deep water over really only the last 20 years, the
really spectacular new technology, there was not the investment
by our government in understanding that environment. So at the
time this was taking place, the investment in studies of that
Gulf of Mexico environment were actually declining.
To redress that, we recommend that not only for oil and gas
development, but for all kinds of energy development around our
coasts whether it is oil and gas in the Alaskan Arctic or wind
power in the Mid-Atlantic, we should have a better capacity,
since we were just talking about energy issues, to understand
the environment.
So our recommendation is that there should be a really
modest fee, if you will, recognizing the Federal deficit
problem, there should be a modest fee to the industry much like
a State would have a severance tax, that would pay for the
appropriate regulation and the appropriate studies to support
that going forward, so that you would have a predictable
support base to sustain those studies.
One final thing, as you know, Senator Whitehouse, since you
have been a champion of this, there is this great interest and
move around our Country to create ocean observing systems,
where we can continuously, using modern technologies, monitor
the State of the ocean. If any part of our national ocean needs
an integrated ocean observing system, it is the Gulf of Mexico,
with the great economic engine that it is in oil and gas
production, shipping, fisheries, all of the conflicting uses.
And again, we have the resources with that industry and we have
the infrastructure, all of the platforms that exist out in the
Gulf of Mexico, to have a first-rate, innovative observing
system that will help us make decisions going forward.
Senator Whitehouse. Thank you, Doctor.
Dean Leinen, again, with respect to the adequacy of our
current research baseline on oceans and coasts and what you
would recommend to improve it.
Ms. Leinen. Well, I think that Dr. Boesch has spoken
eloquently about the Gulf. I will branch out a little further
from there. That lack of ability to understand not only the
conditions as they stand today, but also the processes that
evolve over decades, is a real hindrance to our ability to make
good decisions, whether it is the decline of the winter
flounder in Rhode Island or whether it is the increase in
diseases that humans get that we see in the wild dolphin in
Florida.
We have very little ability to go back and understand what
the causes of those features are.
When you compare this to weather, we understand how much
changing weather influences the economy. But I think that we
haven't realized how much that lack of knowledge and lack of
predictability about the oceans affects our competitiveness,
our ability to use resources wisely, and our ability to prepare
for the changes that we will see in the future.
So it is a need for baselines. It is a need for
understanding evolving processes as well.
Senator Whitehouse. I will followup on these questions with
the remaining witnesses, but my questioning time at this point
has expired and our Chairman has returned. So I will yield to
the Chairman and then perhaps the Chairman will give us another
round afterwards so that we can continue this line of inquiry.
Senator Cardin.
[Presiding] Let me thank Senator Whitehouse. I apologize
for having to leave. We have the Jim Cole nomination on the
floor for Deputy Attorney General, as I know Senator Sessions
is aware and Senator Whitehouse, both from the Judiciary
Committee. So I added to that debate a little bit on the floor.
I want to continue on this baseline issue, but I would like
to get the views of Mr. Graves and Mr. Shattuck as to whether
you believe there are adequate resources available to you as
Trustees to get the type of independent technical support to
make the type of assessments that we have confidence are the
best that we possibly can.
The baseline is a very difficult challenge. No one denies
that. But having the resources available to get the independent
type of verification review and technical assistance, to me,
would be very important. Do you believe the Trustees have
adequate resources here?
Mr. Shattuck. Well, there are never enough resources, to be
honest, but I don't think that we have been impacted or that
the process has suffered in a detrimental way at this point
from a lack of resources. And I think part of that is the
economic incentive that BP has to see that this process is
funded, which sounds counterintuitive, but I think BP wisely
has determined that if they do not fund it at this point, then
they are going to pay for it in the long run and it is going to
cost even more.
So as long as we have that economic incentive for them, we
both benefit from it, in a way, because the studies are done.
But who knows? We aren't finished yet and it could be at some
point we are hampered by lack of resources if BP decides to cut
them off.
And our State, Alabama, is strapped financially. We are in
dire financial straits and we don't have the capacity to
sponsor studies of the Gulf of Mexico or even to the resources
that we have on our own. It is simply not there.
Mr. Graves. Mr. Chairman, I would say that I think there
are resource issues. And just to lay out, under the current
statutory confines for how this would work, if we wanted to try
and assess the impact on red fish in the Gulf of Mexico, we
have to develop a work plan for how that assessment would be
conducted. And we have to go present that to BP, and then there
is a negotiation process.
I am going to embellish this just to give you an idea of
what we have to go through. But during that negotiation, they
can say, well, we don't really like the area where you have
chosen to do this assessment. We think you ought to go to West
Texas. And we say, well, wait a minute. There wasn't oil in
West Texas. They say, well, if you want the money, then you
need to do it in West Texas.
And so you are in a very difficult situation because of the
box I tried to describe earlier where, as Mr. Shattuck
indicated, the States have fiscal challenges. The Federal
Government does. There is a $1 billion cap on the oil spill
liability trust fund that we are very close to hitting.
And so BP is, to a large degree, the only funding source
there. And if you want access to those dollars, you have to
have a negotiation and they have to agree to fund it.
Senator Cardin. That seems to be the problem.
Dr. Boesch, it seems to me that your recommendations really
deal with that by suggesting there needs to be independent,
scientific auditor available to verify that in fact we are
using independent judgment here.
Elaborate a little bit more on that and whether you think
we are implementing that recommendation?
Mr. Boesch. I think having such audit independent
assessment is valuable for a number of reasons. First of all,
for the public confidence that the right thing is being done
all the way around. Second, as we begin the restoration
efforts, there is going to be a requirement to make sure, as
Mr. Shattuck indicated, that this nexus between the damage and
the restoration, to the degree possible, is there.
And having that independently evaluated I think is
important because imagine, as he indicated, there are five
States, each with their own independent, their unique problems
and approaches to restoration, which is fine. But at the end of
the day, they all have to meet that same standard.
So absent that, it becomes a problem as we want to court,
to adjudication of this, not only between the Trustees and the
responsible party, but by third parties who might
hypothetically come in and say, well, the money that BP gave
you really wasn't used to redress this damage; you used it for
some other way, so it shouldn't be counted against the amount
that BP is responsible for.
For all those reasons, and I think the most important
reason is to make sure that what we do with restoration is as
effective as we can be. That independent evaluation I think is
important.
And you ask the question to the agencies, and they do have
lots of technical experts, but of course the technical experts
work for the people within the agencies. So having someone who
is independent, having a group that is independent of that I
think adds real value and accountability to the process.
Senator Cardin. I would just observe this is a similar
issue that came up at our first hearing, whether we would have
the capacity. I just think the process itself has an inherent
conflict because of the funding source and the desire, quite
frankly, to have a cooperative relationship with the
responsible party. That makes sense. If you can do it, save
time and save uncertainty and gets things moving. But on the
other hand, you need to have the independence to move in the
directions you think you need to.
And Mr. Graves, you raise a very important concern as to
the selection of the site is critical to the assessment.
So I am not sure we have quite gotten there yet. I think
there is a real commitment on behalf of the trustees to get
independent scientific information, but the funding sources and
the process itself is challenging. And if you don't have
adequate baseline information, it is hard to make an accurate
assessment.
And there, I think Dr. Rifkin, you have really come in and
provided some real substantial help on the technology, and I am
glad to see EPA is at least using the information that you made
available. I hope it will be successful, that we will be able
to get a more accurate assessment of the current damage.
Have you had any further indications from EPA?
Mr. Rifkind. First of all, I would like to say that the
methodology that we are using was developed by the USGS way
over a decade ago and has been used by Federal agencies for
many years. So this isn't just something a few scientists came
up with recently. It is, however, not being used in the Gulf as
part of the NRDA process, which is a shame. EPA has
acknowledged the value in using these devices.
But since everyone was talking about funding, it is
difficult to obtain that funding either from EPA or from NOAA
or from other organizations. So we are in a position now where
we are going to have limited data, which is going to be more
sophisticated and significant; more sophisticated than what is
currently being used in the NRDA process and very significant
in attempting to quantify chronic damages in the Gulf.
But again, we are very limited in what we can do because of
the lack of funding.
Senator Cardin. Thank you.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman. I appreciate
this opportunity, and I don't think I have another round of
questions.
I believe it is an excellent panel. It is indeed an
excellent panel. We are beginning to have a congressional
response to the damage that the Gulf has sustained. We will
work our way through that hopefully sooner, rather than later.
And I thank you for your leadership.
And Senator Boxer, our Chairman of the full Committee, has
also given a good bit of her time and attention to this, and
her leadership can help us lead to a successful conclusion.
Senator Cardin. Thank you. I concur completely with our
leadership of this Committee. I think that it has focused from
the beginning on trying to get the right thing done and to move
it as quickly and as completely as we can.
Senator Boxer has been very encouraging to this
Subcommittee Chair to move forward on these issues.
Senator Whitehouse.
Senator Whitehouse. I just wanted to give the remaining
witnesses a chance to answer my earlier question, which had to
do with what I perceive to be the inadequacy of the baseline
research, and if you agree that is a problem, what can we be
doing nationally to improve it. Again, not just specific to the
Gulf, but including the Gulf.
Mr. Rifkind. Well, first and foremost, I think the question
is spot on, and it is a very difficult, complicated issue.
Baseline for an impacted area such as Sarasota Bay is different
than the baseline you will find currently along parts of the
coast of Louisiana and Alabama because of previous spills.
And from my point of view, in order to get an adequate
baseline, which is critical, the right information needs to be
obtained periodically and monitored periodically, so that when
a spill occurs, the baseline is there. It is too late after a
spill.
And today, that is what we are always doing. We are always
trying to find a baseline someplace where the spill hasn't
existed, which in fact is not scientifically useful because
that is not the area that we are going to be looking at.
So I think the agencies responsible for collecting data
such as NOAA and EPA and Fish and Wildlife Service and other
Federal agencies need to continually look and monitor, or look
to and monitor certain water bodies such as the Gulf so if
there is another disaster, that baseline will be available
before and not concerns about it after the spill itself.
Senator Whitehouse. Mr. Graves.
Mr. Graves. Thank you, Senator. I often pretend to be
expert in various fields of my job, but I certainly know the
limits of my expertise. If I were to ask that question, I think
one of the first things I would do is probably e-mail Dr.
Boesch and ask him his thoughts. So I would largely defer to
him, in addition to our internal folks. And if it is OK with
you, I would prefer to respond in writing.
Senator Whitehouse. Mr. Shattuck.
Mr Shattuck. Sure. I am not scientist either, but I think
there is a fine line. Disasters like this give us 20/20
hindsight vision, and it would have been great to have a better
baseline, but we have to work with what we have. And what we
learned from that is that it would be great to have a more
extensive baseline study throughout the Country just in case
something like this happens again.
But again, I know that you all are battling limited
resources, as are we, and there is a fine line and balance of
how much can we afford to do, versus addressing more immediate
plans. And that is a risky endeavor, but it is one that
economics might force upon us.
Senator Whitehouse. And clearly a good deal of this
research is done at the State level and through States, through
what in Rhode Island is called the Coastal Resources Management
Council, for instance.
And as States find their budgets slaughtered, it is hard to
imagine that this will improve. And the Federal funding
environment is one that is looking at cuts. And so I think it
is important that we try to find new and lasting sources of
funding so that we are not as ill-informed about the actual
status of our oceans and coasts as we are right now. In many
respects, we are flying blind in certain areas.
And so I appreciate the testimony of all the witnesses.
The only other point I would like to raise briefly, it
hasn't come up yet and I don't know if it is a problem. There
is a concern that when you get to a major incident like this
and you have a responsible party that is pretty evident, and
there is a lot of money at stake, one of the first things that
they do is go in and buy up all the science; put as many
scientists as they can under contract with whatever it takes to
get them. And then they can dole out which ones they want, and
the other ones they just have bought their silence, more or
less.
Have you seen that as a problem? And is that something we
need to attend to?
I guess I will go to Mr. Graves for that.
Mr. Graves. Senator, it absolutely is an issue. Everything
from the attorneys we were interviewing back in May to some of
the consultants, scientists and other experts. Many of them
were conflicted out either by pre-spill contracts or there
certainly was a big rush by the responsible parties to pick
those folks up. It absolutely has been an issue.
Thankfully, one of the major areas of science where we
needed assistance we were able to work our an agreement with
the Federal Government to share a consultant there, but I think
it is an issue.
Senator Cardin. Again, let me thank all of you for your
testimony and for your work in this area. This is a continuing
interest to this Committee and its oversight responsibility.
Obviously, we have to get this right. The stakes are very,
very high for all of us. It affects our entire Country, not
just the directly impacted regions.
So we have got to get this right. We need to learn from how
we handled previous environmental damage areas and we need to
make sure that we can justify the process at the end of the day
as being in the best interests.
One of the encouraging signs, let me just point out that it
seemed, and it was a point that you raised, Dr. Boesch, dealt
with the long-term issues. It looks like that as this is moving
forward, there is sensitivity that the final assessment include
monitoring to make sure that we carry out the intended
restoration that we thought.
It looks like we have made progress since our first hearing
on that issue because that was raised immediately that there
would be damage for a long time to come that may not be quite
as well defined by the time agreements are reached. It seems
like there is sensitivity among the Trustees to make sure that
is included in the long-term solution.
So let me again compliment all of you for your work and we
will look forward to continuing to work with you.
With that, the Subcommittee will stand adjourned.
[Whereupon, at 12 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows.]
Statement of Hon. James M. Inhofe, U.S. Senator
from the State of Oklahoma
Thank you, Senator Cardin, for conducting today's
subcommittee hearing to discuss the difficult and extensive
process of determining natural resource damages stemming from
BP's Deepwater Horizon disaster. As the Committee of
Jurisdiction, one of our fundamental roles is to provide
oversight of the Natural Resource Damage Assessment (NRDA)
process. I look forward to getting an update on the assessment
and a thoughtful discussion on some of those issues today.
Today our committee welcomes two panels of witnesses,
Federal and non-Federal, that have diverse and unique
experiences to share. I'm particularly happy to have witnesses
from the Gulf Coast such as Cooper Shattuck, Chairman of the
Executive Committee of the NRDA Trustee Council, and Garrett
Graves, Chair of the Coastal Protection and Restoration
Authority, State of Louisiana.
As many of you may know, my initial reaction to the
Administration's response was critical, as noted in my report
entitled, ``Failure of Leadership: President Obama and the
Flawed Federal Response to the BP Disaster''. Perhaps time will
tell us that the greatest threat to the Gulf came from the
Obama administration's regulatory overreach on offshore
drilling.
While we still do not know the full extent of the effects
from BP's Deepwater Horizon spill, we owe it to the Gulf region
and the American people to carefully examine the effectiveness
of the Federal response. I hope that this hearing today will be
a positive step in that direction.
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